SOCIETAL AND LEGAL ISSUES SURROUNDING
CHILDREN BORN IN THE UNITED STATES TO IL
LEGAL AUEN PARENTS
Y 4. J 89/1: 104/50 ' '^^^^^
lEARING
Societal and Legal Issues Surround!.. . re the
«Ub(JUMMITTEE ON
IMMIGRATION AND CLAIMS
AND THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
ON
H.R. 705, H.R. 1363, H^. Res. 56, H.J. Res. 64,
H.J. Res. 87, H.J. Res. 88, and H.J. Res. 93
DECEMBER 13, 1995
Serial No. ^^^^^^^i^Pubti^u^
jw 0 4 me
in,
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
23-492 WASraNGTON : 1996
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-052594-2
23-492 0-96-1
SOCIETAL AND LEGAL ISSUES SURROUNDING
CHILDREN BORN IN THE UNITED STATES TO IL
LEGAL AUEN PARENT^
Y 4. J 89/1: 104/50 ^^^ '^^^
lEAEING
Societal aad Legal Issues Surround!... [iei<h£
«UbUOMMITTEE ON
IMMIGRATION AND CLAIMS
AND THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTH CONGRESS
FIRST SESSION
ON
H.R 705, H.R. 1363, H^. Res. 56, H.J. Res. 64,
H.J. Res. 87, H.J. Res. 88, and H.J. Res. 93
DECEMBER 13, 1995
Serial No. ^ f^^^tS^TPubihUb^
JUN 0 4 1996
■"■Z::!:WocmentsDept.
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
23-J92 WASHINGTON : 1996
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-052594-2
23-492 0-96-1
COMMITTEE ON THE JXJDICIARY
HENRY J. HYDE, Illinois, Chairman
CARLOS J. MOORHEAD, California JOHN CONYERS, Jr., Michigan
F. JAMES SENSENBRENNER, Jr., PATRICIA SCHROEDER, Colorado
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. HERMAN, CaUfomia
HOWARD COBLE, North CaroUna RICK BOUCHER, Virginia
LAMAR SMITH, Texas JOHN BRYANT, Texas
STEVEN SCHIFF, New Mexico JACK REED, Rhode Island
ELTON GALLEGLY, CaUfomia JERROLD NADLER, New York
CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia
BOB INGLIS, South CaroUna MELVIN L. WATT, North CaroUna
BOB GOODLATTE, Virginia XAVIER BECERRA, CaUfomia
STEPHEN E. BUYER, Indiana JOSE E. SERRANO, New York
MARTIN R. HOKE, Ohio ZOE LOFGREN, CaUfomia
SONNY BONO, CaUfornia SHEILA JACKSON LEE, Texas
FRED HEINEMAN, North CaroUna
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, DUnois
BOB BARR, Georgia
Alan F. Coffey, Jr., General Counsel/ Staff Director
Julian Epstein, Minority Staff Director
SUBCOMMnTEE ON IMMIGRATION AND CLAIMS
LAMAR SMITH, Texas, Chairman
ELTON GALLEGLY, CaUfomia JOHN BRYANT, Texas
CARLOS J. MOORHEAD, CaUfomia BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
SONNY BONO, CaUfomia HOWARD L. BERMAN, CaUfomia
FRED HEINEMAN, North CaroUna XAVIER BECERRA. CaUfomia
ED BRYANT, Tennessee
CoRDL\ A. Strom, Chief Counsel
Edward R Grant, Counsel
George Fishman, Assistant Counsel
Marie McGlone. Minority Counsel
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, lUinois BARNEY FRANK. Massachusetts
BOB INGLIS, South CaroUna MELVIN L. WATT, North CaroUna
MICHAEL PATRICK FLANAGAN, Illinois JOSE E. SERRANO, New York
F. JAMES SENSENBRENNER, Jr.. JOHN CONYERS, Jr., Michigan
Wisconsin PATRICIA SCHROEDER, Colorado
MARTIN R. HOKE, Ohio
LAMAR SMITH, Texas
BOB GOODLATTE, Virginia
Kathryn a. Hazeem. Chief Counsel
William L. McGrath| Counsel
Keri D. Harrison, Assistant Counsel
John H. Ladd, Assistant Counsel
Robert Raben, Minority Counsel
(H)
CONTENTS
HEARING DATE
Page
December 13, 1995 1
TEXTS OF BILLS
H.R. 705 4
H.R. 1363 6
H.J. Res. 56 9
H.J. Res. 64 11
H.J. Res. 87 13
H.J. Res. 88 15
H.J. Res. 93 17
OPENING ^ATEMENT
Smith, Hon. Lamar, a Representative in Congress from the State of Texas,
and chairman, Subcommittee on Immigration and Claims 1
WITNESSES
Alcantar, Emily Jauregui, former reporter. El Paso Times 119
Beilenson, Hon. Anthony C, a Representative in Congress from the State
of California 32
Bilbray, Hon. Brian P., a Representative in Congress from the State of
California 23
Dellinger, Walter, Assistant Attorney General, Office of Legal Counsel, U.S.
Department of Justice 74
Erler, Prof. Edward J., political science, California State University, San
Bernardino, and senior fellow, Claremont Institute for the Study of States-
manship and Political Philosophy 113
Foley, Hon. Mark, a Representative in Congress from the State of Florida 40
Gallegly, Hon. Elton, a Representative in Congress from the State of Califor-
nia 20
Gutierrez, Hon. Luis V., a Representative in Congress from the State of
Illinois 28
Jordan, Hon. Barbara, professor, Johnson School of Public Affairs, University
of Texas at Austin, and Chair, U.S. Commission on Immigration Reform 47
Lofgren, Hon. Zoe, a Representative in Congress from the State of CaUfomia . 36
Mink, Hon. Patsy T., a Representative in Congress from the State of Hawaii .. 74
Neuman, Prof Gerald L., Coliunbia University Law School 103
Schuck, Prof Peter H., Yale University Law School 94
Zinser, Joan, deputy director, Income Maintenance Biu'eau, San Diego County
Department of Social Services 91
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Alcantar, Emily Jaxiregui, former reporter. El Paso Times: Prepared state-
ment 121
Beilenson, Hon. Anthony C, a Representative in Congress from the State
of California: Prepared statement 34
Bilbray, Hon. Brian P., a Representative in Congress from the State of
California: Prepared statement 25
Conyers, Hon. John, Jr., a Representative in Congress from the State of
Michigan: Prepared statement 71
(III)
IV
Page
Bellinger, Walter, Assistant Attorney General, Office of Legal Counsel, U.S.
Department of Justice: Prepared statement 77
Erler, Prof. Edward J., political science, California State University, San
Bernardino, and senior fellow, Claremont Institute for the Study of States-
manship and Political Philosophy Prepared statement 115
Foley, Hon. Mark, a Representabve in Congress fi-om the State of Florida:
Prepared statement 42
Gallegly, Hon. Elton, a Representative in Congress ftom the State of Califor-
nia:
Prepared statement 22
Two Medi-Cal pamphlets 58
Gutierrez, Hon. Luis v., a Representative in Congress from the State of
Illinois: Prepared statement 30
Jordan, Hon. Barbara, professor, Johnson School of Public Affairs, University
of Texas at Austin, and Chair, U.S. Commission on Immigration Reform:
Prepared statement 49
Lofgren, Hon. Zoe, a Representative in Congress from the State of California:
Prepared statement 38
Mink, Hon. Patsy T., a Representative in Congress from the State of Hawaii:
Prepared statement 73
Neuman, Prof. Gerald L., Columbia University Law School: Prepared state-
ment 105
Schuck, Prof. Peter H., Yale University Law School: Prepared statement 97
Zinser, Joan, deputy director. Income Maintenance Bureau, San Diego Coimty
Department of Social Services: Prepared statement 93
APPENDIXES
Appendix 1. — Statement of Hon. Ileana Ros-Lehtinen, a Representative in
Congress from the State of Florida 141
Appendix 2. — Addendum to Professor Nevunan's statement 142
Appendix 3. — Statement of the Mexican-American Legal Defense and Edu-
cational Fund 144
Appendix 4. — Statement of Raul Yzaguirre, president, National Council of
LaRaza 149
Appendix 5. — ^Letter dated February 12, 1996, frvm Prof Peter H. Schuck
and Prof. Rogers M. Smith, Yale Law School 154
SOCIETAL AND LEGAL ISSUES SURROUNDING
CHILDREN BORN IN THE UNITED STATES
TO ILLEGAL ALIEN PARENTS
WEDNESDAY, DECEMBER 13, 1995
House of Representatives, Subcommittee on Immi-
gration AND Claims, Jointly with the Subcommit-
tee ON THE Constitution, Committee on the Judi-
ciary,
Washington, DC.
The subcommittees met, pursuant to notice, at 10:07 a.m., the
room 2325, Raybum House Office Building, Hon. Lamar Smith
(chairman of the subcommittee on Immigration and Claims) and
Hon. Charles T. Canady (chairman of the subcommittee on the
Constitution) presiding.
Present from the Subcommittee on Immigration and Claims:
Representatives Lamar Smith, Bill McCoUum, Elton Gallegly, Car-
los J. Moorhead, Sonny Bono, Fred Heineman, Ed Bryant of Ten-
nessee, Barney Frank, John Bryant of Texas, and Xavier Becerra.
Present from the Subcommittee on the Constitution: Representa-
tives Charles T. Canady, Henry J. Hyde, Lamar Smith, Bob Inglis,
Barney Frank, John Conyers, Jr., Melvin L. Watt, and Jose E.
Serrano.
Also present': Representatives Patsy T. Mink and Brian P.
Bilbray.
Staff present from the Subcommittee on Immigration and
Claims: Cordia A. Strom, chief counsel; Edward R. Grant, counsel;
George Fishman, assistant counsel; Judy Knott, secretary; and
Marie McGlone, minority counsel.
Staff present from the Subcommittee on the Constitution: Kath-
ryn A. Hazeem, chief counsel; Keri D. Harrison, assistant counsel;
and Robert Raben, minority counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. Smith. We will proceed with our first panel. But first of all,
welcome to you all who are here today. I would especially like to
thank Charles Canady, who is the chairman of the Subcommittee
on the Constitution for cochairing this hearing. Without objection,
his opening statement will be made a part of the record. Congress-
man Canady is at another markup. In fact, there are two other
subcommittees of the Judiciary Committee that have markups
going on right now, as well as a conference meeting of all Repub-
licans. So it will probably be a little while before we will have
much company up here.
(1)
The United States is one of the few industrialized countries in
the worid that grants automatic citizenship to nearly every child
bom in the country, even the children of illegal immigrants. For in-
stance, England, the originator of this practice, reversed course 14
years ago. Canada is currently considering doing the same. Is it
time for us to reconsider our pohcy of granting birthright citizen-
ship to the children of illegal aliens? That is the question we will
address today.
I know this is a sensitive issue. Afterall, our birthright citizen-
ship policy is anchored in the first section of the 14th amendment
to the Constitution which states, "All persons bom in the United
States and subject to the jurisdiction thereof, are citizens of the
United States." It was written after the Civil War to guarantee citi-
zenship to those formerly held in bondage and to their descendants.
What is the current impact of this amendment? We will have a
witness testify today that smugglers are bringing pregnant women
into this country to give birth so that their children are American
citizens. AlDout 16 percent of all the births taking place in Califor-
nia each year are to illegal alien mothers. The county of Los Ange-
les alone estimates that almost 200,000 U.S. citizen children of ille-
gal aliens are living in that area and collecting half a billion dollars
a year in AFDC benefits alone. The county estimates that the cost
to Los Angeles school districts for primary and secondary education
for the citizen children of illegal alien parents is over $600 million
a year. That is a total cost to that one county of over $1 billion a
year.
Even apart from these quantifiable costs, is citizenship devalued
when it is obtained in this way? If birthright citizenship is to be
modified, how should it be done? We will hear today from witnesses
who will argue that the 14th amendment's grant of birthright citi-
zenship was never meant to apply to the children of illegal aliens,
because one, our Founders felt that members of our national com-
munity should have the right to choose who will join that commu-
nity, two, the children of illegal aliens are not subject to the juris-
diction of the United States under the 14th amendment, and three,
there really were no illegal aliens in 1868 when the 14th amend-
ment became effective since this was a fiill 7 years before the first
significant Federal immigration statute. If these individuals are
correct, then enacting a Federal statute could constitutionally end
birthright citizenship.
Others will argue today that the 14th amendment's grant of
birthright citizenship was meant to apply to all persons except cer-
tain native Americans and the children of diplomats. They will
argue that their position was reinforced by the Supreme Court's
1897 mling in United States v. Wong Kim Ark. If they are correct,
then a constitutional amendment would be required to modify
birthright citizenship.
To address these and other issues, we welcome our first panel
today, which is comprised of our distinguished colleagues. We have
done our best today to follow protocol. The individu^s are here in
the order in which they introduced legislation governing this par-
ticular subject. As has already been pointed out, we are also espe-
cially pleased to have a former colleague with us today. Prof. Bar-
bara Jordan, who is also of course a friend from home for me.
[The bills, H.R. 705, H.R. 1363, H.J. Res. 56, H.J. Res. 614, H.J.
Res. 87, H.J. Res. 88, and H.J. Res. 93, follow:]
104th congress
1st Session
H. R. 705
To amend the Immigration and Nationality Act to limit citizenship at birth,
merely by virtue of birth in the United States, to persons wth citizen
or legal resident mothers.
IN THE HOUSE OF REPRESENTATIVES
January 26, 1995
Mr. Gallegly introduced the following bill; which was referred to the
Committee on the Judiciary
A BILL
To amend the Immigration and Nationality Act to limit
citizenship at birth, merely by virtue of birth in the
United States, to persons with citizen or legal resident
mothers.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. LIMmNG CITIZENSHIP AT BIRTH, MERELY BY
4 VIRTUE OF BIRTH IN THE UNITED STATES,
5 TO PERSONS WITH LEGAL RESIDENT MOTH-
6 ERS.
7 (a) In Gent:ral. — Section 301(a) of the Immigra-
8 tion and Nationahty Act (8 U.S.C. 1401(a)) is amended
2
1 by inserting before the semicolon the following: ", of a
2 mother who is a citizen or legal resident of the United
3 States".
4 (b) Effective Date. — The amendment made by
5 subsection (a) shall apply to persons born after the date
6 of ratification of an article of amendment to the Constitu-
7 tion of the United States that repeals the first sentence
8 of section 1 of the fourteenth article of amendment to the
9 Constitution of the United States.
•H 705 IH
104th congress
1st Session
H.R.1363
To amend the Immigration and Nationality Act to deny citizenship at birth
to children bom in the United States of parents who are not citizens
or permanent resident aliens.
IN THE HOUSE OF REPRESENTATIVES
March 30, 1995
Mr. BiLBRAY (for himself, Mr. CUNXINGHAAI, Mr. PACKARD, Mr. HUNTER,
Mr. DOOLITTLE, Mrs. ROUKEMA, Mr. Stenholm, Mr. Baker of Califor-
nia, Mr. Calx'ert, Mrs. Johnson of Connecticut, Mr. Murtha, Mr.
Trapicant, Mr. Hayes, Mr. Bono, Mr. McKeon, Mr. Rohrabacher,
Mr. RiGGS, Mr. HORN, Mrs. Seastrant), Mr. Shadegg, and Mrs.
Kelly) introduced the following bill; which was referred to the Commit-
tee on the Judiciary
A BILL
To amend the Immigration and Nationality Act to deny
citizenship at birth to children bom in the United States
of parents who are not citizens or permanent resident
aliens.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Citizenship Reform
5 Act of 1995".
2
1 SEC. 2. PURPOSE.
2 It is the purpose of this Act to deny automatic citi-
3 zenship at birth to children bom in the United States to
4 parents who are not citizens or permanent resident aUens.
5 SEC. 3. CITIZENSHIP AT BIRTH FOR CHILDREN OF NON-CIT-
6 IZEN, NON-PERMANENT RESIDENT ALIENS.
7 (a) In General. — Section 101 of the Immigration
8 and Nationality Act (8 U.S.C. 1101) is amended by insert-
9 ing after subsection (c) the following new subsection:
10 "(d) For purposes of section 301(a), a person born
11 in the United States shall be considered as 'subject to the
12 jurisdiction of the United States' if —
13 "(1) the child was born in wedlock in the
14 United States to a parent either of whom is (A) a
15 citizen or national of the United States, or (B) an
16 alien who is lawfully admitted for permanent resi-
17 dence and maintains his or her residence (as defined
18 in subsection (a) (33)) in the United States; or
19 "(2) the child was born out of wedlock in the
20 United States to a mother who is (A) a citizen or
21 national of the United States, or (B) an alien who
22 is lawfully admitted for permanent residence and
23 maintains her residence in the United States.",
24 (b) Conforming Amendment. — Section 301 of
25 such Act (8 U.S.C. 1401) is amended by inserting "(as
•HR 1363 IH
8
3
1 defined in section 101(d))" after "subject to the jurisdic-
2 tion thereof.
3 (c) Effective Date. — The amendments made by
4 this section shaU apply to aliens bom on or after the date
5 of the enactment of this Act.
lA
104th congress
1st Session
H. J. RES. 56
Proposing an amendment to the Constitution of the United States to restrict
tlie I'equirement of citizensliif) at birtli by virtue of birth in tlie United
States to persons with a legal resident mother or father.
IX THE HOUSE OF REPRESEXTATR^S
January 19, 1995
Mr. BeileN'SOX introduced the following joint resolution; which was referred
to the Committee on the Judiciarv
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States to restrict the requirement of citizenship at birth
by virtue of birth in the United States to persons with
a legal resident mother or father.
1 Resolved by tJie Senate and House of Representatives
2 of the United States of America i7i Congress assembled,
3 (two-thirds of each House concurring therein), That the fol-
4 lowing article is proposed as an amendment to the Con-
5 stitution of the United States, which shall be vahd to all
6 intents and purposes as part of the Constitution when
7 ratified by the legislatures of three-fourths of the several
10
2
1 States within seven years after the date of its submission
2 for ratification:
3 "Article —
4 "Section 1. All persons born in the United States,
5 and subject to the jurisdiction thereof, of a mother or fa-
6 ther who is a legal resident of the United States and all
7 persons naturalized in the United States are citizens of
8 the United States and of the State wherein they reside.
9 The first sentence of section 1 of the fourteenth article
10 of amendment to the Constitution of the United States
11 is hereby repealed.
12 "Section 2. The Congress shall have power to en-
13 force before this article by appropriate legislation.
14 "Section 3. This article shaU apply to persons born
15 after the date of its ratification.".
•H.I fiR m
11
lA
104th congress
1st Session
H. J. RES. 64
Proposing an amendment to the Constitution of the United States to restrict
the requirement of citizenship at birth by virtue of birth in the United
States to persons with citizen or legal resident mothers.
IN THE HOUSE OF REPRESENTATIVES
January 26, 1995
Mr. Gallegly introduced the following joint resolution; which was referred
to the Committee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States to restrict the requirement of citizenship at birth
by virtue of birth in the United States to persons with
citizen or legal resident mothers.
1 Resolved by the Senate and House of Representatives
2 of the United States of America in Congress assembled (two-
3 thirds of each House concurring therein), That the follow-
4 ing article is proposed as an amendment to the Constitu-
5 tion of the United States, which shall be valid to all intents
6 and purposes as part of the Constitution when ratified by
7 the legislatures of three-fourths of the several States with-
12
2
1 in seven years after the date of its submission for ratifica-
2 tion:
3 "Article —
4 "Section 1. All persons bom in the United States,
5 and subject to the jurisdiction thereof, of mothers who are
6 citizens or legal residents of the United States and all per-
7 sons naturalized in the United States are citizens of the
8 United States and of the State wherein they reside. The
9 first sentence of section 1 of the fourteenth article of
10 amendment to the Constitution of the United States is
1 1 hereby repealed.
12 "Section 2. The Congress shall have power to en-
13 force this article by appropriate legislation.
14 "Section 3. This article shall apply to persons born
15 after the date of its ratification.".
•HJ 64 IH
13
lA
104th congress
1st Session
H. J. RES. 87
Proposinff an amendment to the Constitution of tlie United States repardinp
citizenship in the United States.
IN THE HOUSE OF REPRESEXTATR^S
May 3, 1995
Mr. Stockman (for liimself, Mr. Jones, Mr. Fi:ni)ERBi:kk, Mrs.
ClIKNOWKTIl, Mr. Bi:kton of Indiana, and Mr. Salmon) introduced the
follownn^r joint resolution; wiiich was refen-ed to the Committee on the
Judiciar\'
JOINT RESOLUTION
Proposing: an amendment to the Constitution of the United
States regarding citizenship in the United States.
1 Resolved hy the Senate and House of Representatives
2 of tJie United States of America in Congress assembled (two-
3 thirds of each House concurring therein), That the foUow-
4 ing article is proposed as an amendment to the Constitu-
5 tion of the United States, which shall be valid to all intents
6 and purposes as part of the Constitution when ratified by
7 the legislatures of three-fourths of the several States with-
8 in seven years after the date of its submission for ratifiea-
9 tion:
14
2
1 "Article —
2 "Section 1. Citizens of the United States shall only
3 be persons born to a parent who is a citizen of the United
4 States, persons born within the United States and to a
5 parent who was lawfully present in and subject to the ju-
6 risdiction of the United States at the time of that parent's
7 entrv' into the United States, and all persons naturalized
8 according to the laws of the United States.
9 "Section 2. Nothing in this Constitution shall re-
10 quire either the Congress or the States to provide pay-
1 1 ments or services to any person who is not a citizen of
12 the United States.
13 "Section 3. No person shall become a naturalized
14 citizen of the United States who is not conversant in the
15 English language, except for persons under the age of five,
16 and who has not sworn allegiance to the United States
17 over and above allegiance to any other polity.
18 "Section 4. Representatives shall be apportioned
19 among the several States according to their respective
20 numbers, counting only the number of citizens of each
21 State.".
•HJ 87 m
15
lA
104th congress
1st Session
H. J. RES. 88
Proposing an amendment to the Constitution of the United States to provide
that no person bom in the United States will be a United States
citizen on account of birth in the United States unless a parent is
a United States citizen at the time of the birth.
IN THE HOUSE OF REPRESENTATIVES
May 17, 1995
Mr. Callahan (for himself, Mr. Stump, Mr. Everett, and Mr. Traficant)
introduced the following joint resolution; which was referred to the Com-
mittee on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States to provide that no person born in the United
States will be a United States citizen on account of
birth in the United States unless a parent is a United
States citizen at the time of the birth.
1 Resolved by the Senate and House of Representatives
2 of the United States of America in Congress assembled (two-
3 thirds of each House concurring therein), That the follow-
4 ing article is proposed as an amendment to the Constitu-
5 tion of the United States, which shall be valid to all intents
6 and purposes as part of the Constitution when ratified by
7 the legislatures of three-fourths of the several States with-
16
2
1 in seven years after the date of its submission to the
2 States for ratification:
3 "Article —
4 "Section 1. No person born in the United States
5 after the date of the ratification of this article shall be
6 a citizen of the United States, or of anj'- State, on account
7 of birth in the United States unless the mother or father
8 of the person is a citizen of the United States at the time
9 of the birth.
10 "Sec. 2. The Congress shall have power to enforce
1 1 this article by appropriate legislation.".
•HJ 88 IH
17
lA
104th congress
1st Session
H. J. RES. 93
Proposing an amendment to the Constitution of the United States to provide
that no person bom in the United States will be a United States
citizen unless a parent is a United States citizen, is lawfully in the
United States, or has a lawful immigration status at the time of the
buth.
IN THE HOUSE OF REPRESENTATIVES
May 25, 1995
Mr. Foley (for himself, Mr. HaN(X)CK, Mr. Baker of California, Mr.
ROHRABACHER, Mr. ROYCE, Mr. BiLBRAY, Mr. DOOLTTTLE, Mr. EWING,
Mr. Stump, Mr. Young of Alaska, Mrs. Chenoweth, Mrs. Meyers of
Kansas, Mr. Saxton, Mr. CHRYSLER, Mr. Wilson, Mr. McKeon, Mr.
Calvert, Mr. Klug, Mr. Baker of Louisiana, and Mr. Metcalf) intro-
duced the following joint resolution; \<^ch was referred to the Committee
on the Judiciary
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States to provide that no person bom in the United
States wiU be a United States citizen unless a parent
is a United States citizen, is lawfully in the United
States, or has a lawful immigration status at the time
of the birth.
1 Resolved by the Senate and House of Representatives
2 of the United States of America in Congress assembled (two-
3 thirds of each House concurring therein), That the foUow-
18
2
1 ing article is proposed as an amendment to the Constitu-
2 tion of the United States, which shaU be vahd to all intents
3 and purposes as part of the Constitution when ratified by
4 the legislatures of three-fourths of the several States with-
5 in seven years after the date of its submission for ratifica-
6 tion:
7 "Article —
8 "Section 1. No person bom in the United States
9 after the date of the ratification of this article shall be
10 a citizen of the United States, or of any State, on account
11 of birth in the United States unless the mother or father
12 of the person is a citizen of the United States, is lawfully
13 in the United States, or has a lawful status under the im-
14 migration laws of the United States, at the time of the
15 birth.
16 "Section 2. The Congress shall have power to en-
17 force this article by appropriate legislation.".
•HJ 93 IH
19
Mr. Smith. Let us begin. We will start first with the Honorable
Representative Elton Gallegly, and then work our way down.
Mr. Becerra. Mr. Chairman.
Mr. Smith. Yes, excuse me. I'm sorry.
Mr. Becerra. Will there be an opportunity for opening state-
ments?
Mr. Smith. Why don't we make them right now. I just looked
around and didn't look up enough. You are recognized.
Mr. Becerra. Thank you, Mr. Chairman. I appreciate that. I
thank the chairman for convening this hearing, and I thank in ad-
vance all those who will be testif5dng.
I would Uke to just begin by asking a question of the chairman
again. I had raised this question last week with regard to Members
of Congress being given the opportunity to testify before the com-
mittee. Again, I'm not sure what the practice has been. I'm not
sure what the protocol will be for this particular subcommittee or
the full Committee on the Judiciary. But I understand that Mrs.
Patsy Mink, a Representative from Hawaii, had also requested the
opportunity to speak before this committee. My understanding is
further that she was denied that opportunity. I'd like to see if I can
get some clarification from the chsdrman on that.
Mr. Smith. Mr. Becerra, let me respond quickly. It is my under-
standing that she requested the opportunity to testify. We said we
would be happy to accept her written testimony, but since she
wasn't a member of the Judiciary Committee and we already had
nine members who we felt represented both sides very well, we
asked her to submit written testimony. To my knowledge, that was
something that was acceptable to her. I have not heard otherwise.
Mr. Becerra. I heard otherwise.
Mr. Smith. Let me suggest to you to pass on to her, since she
didn't contact me directly, that next time she contact me directly.
Mr. Becerra. I will do so, Mr. Chairman. I believe the chairman
in what he says that he himself did not hear otherwise.
I also understand, there's something very disturbing, that evi-
dently it was mentioned that there was no need for her to testify
because this is not an issue that involves Asians but only Mexicans
having children or babies in this country. I'm not sure if that was
said or not. That's hearsay, but I did learn that may have been told
to her, that there was no need for her to testify, that enough people
were allowed to testify. If that were the case, I would hope that
those types of comments would not be injected and given as rea-
sons for disallowing a Member of Congress the opportunity to tes-
tify.
Mr. Smith. OK Thank you, Mr. Becerra. I would certainly hope
that that's not the case. As we both know, hearsay is not admissi-
ble. But I'll certainly look into that, and I thank you for calling it
to my attention.
Mr. Becerra. Thank you. If I could just finish then. In terms of
any opening presentation, I would just like to say to those who will
testify and to those who are here watching, I find it interesting
that last week we had a hearing on the issue of immigration, in
this case dealing with the issue of allowing people to come into this
country who are immigrants, but only for a temporary period to do
work and then to leave. There is a proposal these days to provide
20
a guest worker program, similar to what this country has had in
the past, the bracero program, for example, in the 1940's through
the 1960's of this century. Where what v/e would do is allow people
to enter the country, provide their labor, and as we heard from the
testimony of many of the growers who are requesting this, they are
very determined labor, very difficult labor, and apparently very
unique labor because of the millions of people unemployed in this
country. None of those American citizens who are unemployed
could do the work that was necessary in the fields, so it was nec-
essary for us to import people from other countries, temporarily of
course, to do the work. I find that very fascinating, that today now
we're discussing just the opposite.
Today, not only do we wish to exclude, but we wish to exclude
people who by birth become U.S. citizens. I am very interested in
seeing the distinction, in learning a little bit more about the dis-
tinction, hearing what people think about letting some people come
in and do some things in this country, and denying others the right
to do what anyone bom in this country has had the right to do
since as I understand it, the creation of this country.
I know that there are differences as to whether or not the Con-
stitution and the 14th amendment meant to apply it to anyone
bom in this country in extending citizenship status. I am very in-
terested in hearing that debate. I hope ultimately what we will do
is try to do what we think is most practical for this country, and
perhaps at some point, we'll consider the humanity of it as well.
So I thank the chairman for this opportunity to make an opening
statement. I would hope to see some clarification in terms of the
subcommittee's position and practice with regard to allowing mem-
bers to testify. Tliank you.
Mr. Smith. Thank you, Mr. Becerra. Mr. Gallegly.
STATEMENT OF HON. ELTON GALLEGLY, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Gallegly. Thank you very much, Mr. Chairman. Thank you
for the opportunity to appear before our committee today. I com-
mend the chairman for holding these hearings on this very impor-
tant issue of birthright citizenship, an issue of critical importance
to our entire nation, and particularly, our border States.
Since 1991, I have sponsored legislation to amend our Constitu-
tion to abolish the automatic citizenship to the children in this
country that are bom to illegal alien parents. This proposal was
also a key recommendation of the Congressional Task Force on Im-
migration Reform, a 54-member bipartisan group, which I have had
the privilege to chair. This proposal was adopted by the entire task
force with only one dissenting opinion. I have long championed this
change in the 14th amendment because it is my belief that our cur-
rent law encourages widespread illegal immigration and costs
American taxpayers billions of dollars each year.
I expect the opponents of this change in our citizenship law will
decry this proposal as radical. However, far from being radical,
such restrictions on citizenship are the norm around the world.
Only a handful of countries, Argentina, Canada, and Mexico still
grant automatic citizenship. In Canada, the Committee on Citizen-
ship and Immigration last year recommended that this policy be
21
changed and birthright citizenship be hmited to children bom in
Canada only if one or both of their parents is a permanent resident
or Canadian citizen, or in the case of a parent that is a valid Cana-
dian refugee. Nearly every nation in Europe, Africa, and Asia do
not permit automatic citizenship to children of illegal immigrants.
In fact, both the United Kingdom and even Australia, a country
which shares a long immigrant tradition similar to ours, both re-
pealed their U.S.-style citizenship policies during the 1980's.
My proposed amendment is much more limited. It would confer
automatic citizenship to children of legal residents as well as citi-
zens, denying it only to the children of illegal alien parents.
This change in our citizenship law is long overdue, as there are
a growing number of women who illegally enter the United States
for the sole purpose of giving birth to an American citizen. There
are a number of reasons for this. First, these children are eligible
for Federal, State, and local benefit programs, and having a child
is virtually a guarantee against deportation.
In addition, under our current legal immigration system, the citi-
zen child can sponsor their illegal parents or any other close rel-
ative for permanent resident status. This powerful incentive for il-
legal immigration must be eliminated. In Los Angeles County,
there are an estimated 250,000 citizen children of illegal alien
mothers, all eligible for very generous benefit programs. For the
State of California, the estimated welfare and health costs of the
children of illegal aliens is estimated to be over $500 million annu-
ally. This number does not even include the largest cost of all.
That, of course, is the cost of providing a public education.
The costs of this policy are enormous and will continue to sky-
rocket when you consider that in over two-thirds of all the births
in Los Angeles County operated hospitals, the mothers are illegally
in this country. In California, with over 31 million residents, over
40 percent of all the births paid for by Medi-Cal, the State Medic-
aid system, are to illegal alien mothers. In Los Angeles County, the
California Department of Health Services estimated that AFDC
costs for citizen children rose from $249 million to $461 million be-
tween fiscal years 1991 and fiscal year 1994 — almost a 100-percent
increase in just that one 3-year period. Nationwide, it is difficult
to find precise data on the costs attributable to citizen children of
illegal aliens. However, just among the school-aged population, it
is estimated that 1.3 million children were bom in the United
States to illegal alien parents.
Some will argue that the reform would violate the spirit of the
14th amendment. That amendment, I must remind my colleagues,
was drafted after the Civil War to guarantee that the recently
freed slaves did not lose their citizenship rights based on action by
the States. When that amendment was enacted in 1868, there were
no illegal immigrants in the United States because there were no
immigration laws until 1875.
Other advocates of maintaining the status quo argue that re-
forming citizenship policies would create a permanent subclass of
residents as is found in some other parts of the world. I reject this
analogy, because our nation continues to encourage assimilation
and citizenship of those who are here legally. Our proposal only fo-
cuses on illegal immigrants.
22
Mr. Chairman, this Congress is finsilly taking the necessary
steps to regain control of our borders and eliminate the access of
illegal immigrants to public benefits. However, the lure of benefits
must be attacked at all levels, including illegal aliens who know-
ingly manipulate our citizenship laws to receive these benefits.
Mr. Chairman, poll after poll shows that the solid majority of
Americans, liberal, moderate and conservative, believe that reforms
are necessary. Because immigration reform is inherently an emo-
tional issue, it is incumbent on all of us to debate this issue based
on the facts and not on emotion. Thank you, Mr. Chairman.
[The prepared statement of Mr. Gallegly follows:]
Prepared Statement of Hon. Elton Gallegly, a Representative in Congress
From the State of Californl\
Thank you for the opportunity to appear before you today. I commend Chairman
Smith for holding these hearings on the issue of birthright citizenship, an issue of
critical importance to our entire nation and, in particular, our border states.
Since 1991, I have sponsored legislation to amend our Constitution to abolish
automatic citizenship to children bom in this country to Ulegal alien parents. This
proposal was also a Key recommendation of the Congressional Task Force on Immi-
gration Reform, a 54-member bi-partisan group which I chair. This proposal was
adopted by the entire Task Force with only one dissenting opinion.
I nave long championed this change to the Fourteenth Amendment because it is
my belief that our current law encourages widespread illegal immigration and costs
American taxpayers billions of dollars each year.
I expect that opponents of this change in our citizenship law will decry this pro-
posal as radical. However, far from being radical, such restrictions on citizenship
are the norm around the world. Only a handful of countries — ^Argentina, Canada
and Mexico— stiU grant automatic birthright citizenship. And in Canada, the Com-
mittee on Citizenship and Immigration last year recommended that this policy be
changed and birthright citizenship be limited to children bom in Canada only if
"one or both of their parents is a permanent resident or Canadian citizen" or in the
case of a parent that is a valid Canadian refugee.
Nearly every nation in Europe, Africa and Asia do not permit automatic citizen-
ship to children of illegal immigrants. In fact, both the United Kingdom and even
Australia, a country which shares a long immigrant tradition similar to ours, both
repealed their U.S. style citizenship poUcies during the 1980's. My proposed amend-
ment is much more limited. It would confer automatic citizenship to children of legal
residents as well as citizens, denying it only to children of illegal aUen parents.
This change in our citizenship laws is long overdue as there are a growing num-
ber of women who illegally enter the United States for the sole purpose of giving
birth to an American citizen. There are a number of reasons for this.
First, these children are eUgible for federal, state and local benefit programs, and
having a child is a virtual guarantee against deportation. In addition, under our
current legal immigration system, the citizen child can sponsor their illegal parents,
or any other close relative, for permanent resident status.
This powerful incentive for illegal immigration must be eliminated. In Los Ange-
les County, there are an estimated 250,000 citizen children of illegal alien mothers,
all eligible for generous benefit programs. For the state of California, the estimated
welfare and health costs of the children of illegal aUens is estimated to be over $500
milUon annually. And this number does not even include the largest cost of all —
providing a free public education.
The costs of this policy are enormous and will only skjTocket when you consider
that over two-thirds of the births in Los Angeles county's public hospitals are to ille-
gal alien parents. In California, a state with over 31 million residents, 40% of all
births paid by Medi-Cal — the state Medicaid system — are to illegal ahen mothers.
In Los Angeles County, the California Department of Health Services estimated
that AFDC costs for citizen children rose from $249 million to $461 million between
fiscal year 1991 and fiscal year 1994. This represents a staggering 85% increase in
just three years.
Nationwide, it is difficult to find precise data on the costs attributable to citizen
children of illegal aliens. However, just among the school-age population, it is esti-
mated that 1.3 million children were bom in the United States to illegal ahen par-
ents. Some will argue that the reform would violate the spirit of the 14th Amend-
23
ment. That amendment was drafted after the Civil War to guarantee that recently
freed slaves did not lose their citizenship rights based on action by the states. When
that amendment was enacted in 1868, tnere were no illegal immigrants in the Unit-
ed States because there were no immigration laws until 1875.
Other advocates of maintaining the status quo argue that reforming citizenship
policies would create a permanent subclass of residents as is found in some parts
of liie world. I reject that analogy because our nation continues to encourage assimi-
lation and citizenship of those who are here legally. Our proposal only aims at ille-
gal immigrants.
Mr. Chairman, this Congress is finally taking the necessary steps to regain con-
trol of our borders and eliminate the access of megal immigrants to public benefits.
However, the lure of benefits must be attacked at all levels, including illegal aliens
who knowingly manipulate our citizenship laws to receive these benefits.
Current law bestows citizenship on a kind of technicality, based more on logistics
and timing than on roots, community or legality. This is clearly inappropriate. An
act of geography should not be interpreted as an act of jurisprudence.
Mr. Chairman, poll after poll shows that a solid majority of Americans — liberal,
moderate and conservative — ^beUeve that reforms are necessary. And because immi-
f ration reform is inherently an emotional issue, it is incumbent upon eill of us to
ebate this issue with facts, not with emotions.
Mr. Smith. Mr, Gallegly, thank you. Let me say for those who
don't know that, you of course are a member and a very active
member of the Immigration Subcommittee. So we welcome you
back up here at your convenience.
Let me also announce that regrettably, we have no timekeeper
here. You all are used to seeing a red light after 5 minutes. That
will not be the case. So I am going to have the responsibility of hit-
ting the gavel at 5 minutes, according to a timekeeper that we
have up here. So I would ask for your indulgence in trying to limit
your remarks to 5 minutes. Not just this panel, but subsequent
panels as well.
Congressman Brian Bilbray of California.
STATEMENT OF HON. BRIAN P. BILBRAY, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Bilbray. Thank you, Mr. Chairman. I appreciate the chance
to be able to testify today and appreciate you having us.
Mr. Smith. Brian, let me interrupt you just for a minute. I want
to introduce Congressman Serrano, who just joined us. He is a
member of the Constitution Subcommittee as well. Jose, we wel-
come you. And Bill McCollum of Florida, who has just joined us as
well.
Excuse me, Brian,
Mr, Bilbray. Thank you, Mr. Chairman. Mr, Chairman, this
issue is of great significance to me as someone who grew up along
the Mexican border dealing with the consequences of an open bor-
der. Specifically, as a San Diego county supervisor, for the past 10
years, I addressed the strains which automatic citizenship placed
on our system.
The Citizenship Reform Act of 1995 is based on my lifelong expe-
rience. I have introduced the Citizenship Act, which denies auto-
matic citizenship to children of illegal aliens who were bom on U.S.
soil. It makes these changes statutorily by amending the Immigra-
tion and Naturalization Act. H.R, 1363 has 33 bipartisan cospon-
sors, which includes Congressman Jay Kim, who I would like to
note is a legal immigrant to the United States,
The current interpretation of the law allows children of illegal
parents, bom on U,S, soil to automatically be granted U.S. citizen-
24
ship. Over 96,000 babies of illegal aliens were bom in California
in 1992 alone. These children then qualify for the benefits of Med-
icaid, AFDC, WIC, SSI. This is an insult to legal aliens such as my
mother, who observed all our immigration laws and came through
the proper channels to the United States.
There is no basis of law or Supreme Court ruling for the current
interpretation. The 14th amendment and the debate surrounding it
is very clear in its assertion that all persons bom or naturalized
in the United States and subject to the jurisdiction thereof are citi-
zens of the United States. In addition, there has been no Supreme
Court ruling on a case dealing with children of illegal aliens.
Now, Mr. Chairman, the purpose of the 14th amendment was
twofold. One, to transform the relationship of citizenship from pri-
mary at State, secondary at Federal to primary Federal, secondary
to the States. It also included a major issue that Senator Howard,
the author of the amendment, stressed. That is, the rights and re-
sponsibilities of Congress to be able to intervene on issues of citi-
zenship. This was a very, very strong component.
Now, t^iere are those who will argue that British common law
was reinforced by the 14th amendment to overturn the Dred Scott
decision, which has some merit in debate. I will refer to the fact
that the British common law does also address this issue. Congress'
power under the 14th amendment is quite clear under section 5.
My bill addresses the issue that Congress has the responsibility
and authority to define who is and who is not a citizen.
Congress has employed these constitutional powers by legislating
and clarifying citizenship status for native Americans. After pas-
sage of the 14th amendment. Congress acted in 1870 with the Win-
nebago Indians in Minnesota, by permitting them to apply for citi-
zenship with condition that the Indians cease to be members of the
tribe and their lands were to be subject to taxation. The Indian
Territorial Nationalization Act in 1890 broadened the earlier Act
by allowing any member of any Indian tribe or nation residing in
Indian territory to apply for citizenship. From 1854 until 1924, citi-
zenship was a common Government incentive to encourage assimi-
lation of Indians.
Congress' authority to nationalize Indians was also sustained by
the courts in the case of Elk v. Wilkins in 1884. The United States
V. Celestine in 1909. Now Indians were perceived to owe allegiance
to their tribe and were therefore not under the obedience of the
United States. Indians were only to be granted U.S. citizenship by
act of Congress.
Now today, those who are in the United States illegally are clear-
ly not subject to the jurisdiction thereof. Or rather, obeying the
Federal Grovemment as illustrated by the fact that they have cho-
sen to violate our immigration laws. But more importantly, violate
our national sovereignty.
If illegal aliens have babies on U.S. soil they, according to prece-
dent, must demonstrate obedience to the law as a condition for that
automatic citizenship. Historical record has demonstrated, Mr.
Chairman, repeatedly in the case involving Indians, that citizen-
ship could only be achieved through congressional action, and not
through automatic citizenship under the 14th amendment. I feel
25
that it is quite clear that Indians and illegal aliens fall under the
same category, and that it is up to Congress to determine it.
The McKay v. Campbell case specifically said that to be a citizen
of the United States by reason of birth, a person must not only be
bom within the territorial limits, but he also must be bom subject
to the jurisdiction. That, is in the power and obedience of the Unit-
ed States. Thus, I think that clarifies the perimeter of citizenship
pretty strongly.
The case of the U.S. v. Wong Kim Ark, in 1897 is pointed to op-
ponents of my case as being proof that we need a constitutional
amendment. However, this case only referred to legal residents.
The parents were legal at the time. Under the majority opinion of
the court, the Justices stated that the children of foreign ambas-
sadors for alien enemies bom during their hostile occupation of
part of the King's domain, were not naturally bom subjects because
they were not bom within the allegiance, the obedience, the power,
or within the jurisdiction of the King.
Now, Mr. Chairman, I think it comes down to the fact that there
are those that are going to say that obedience is not a condition.
Under British common Taw, we can go back and say that. But let
me just close with this statement. In the McKay v. Campbell case,
I think the court said it quite clearly about what public opinion,
no matter how long it stands, has to do with legal court. In this
case in 1897, the court concluded that public opinion is not any au-
thority on a point of law. The current misinterpretation of our citi-
zenship law does not relieve the Congress of the constitutional re-
sponsibility to right this wrong. I ask you to address this issue. We
can't walk from it. It is time for us to right this wrong. Again, I
thank you for the chance to testify before this committee.
[The prepared statement of Mr. Bilbray follows:]
Prepared Statement of Hon. Brian P. Bilbray A Representative in Congress
From the State of California
Good morning, Chairman Smith Chairman Canady and members of the Sub-
committees. I would like to extend my gratitude to you for holding this important
hearing on the issue of automatic United States citizenship. As you know, this issue
is of great significance to me, personally, because I grew up along the Mexican bor-
der, dealing with the consequences of an open border, which are exacerbated by the
strains which automatic citizenship places on the system. Based on this Ufe-long ex-
perience, I have introduced "The Citizenship Reform Act of 1995," H.R. 1363, which
denies automatic citizenship to children of illegal aliens who are bom on U.S. soil.
My legislation makes this change statutorily by amending the Immigration and Na-
tionality Act. H.R. 1363 has 33 oi-peirtisan cosponsors, including Representative Jay
Kim, who, it is important to note, worked within the system to legally inunigrate
from Korea.
The ciurent interpretation of the law allows children of illegal alien parents bom
on U.S. soil to automatically be granted U.S. citizenship. As I have stated previously
before this committee over 96,000 babies of illegal aliens were bom in California in
1992. These children then qualify for benefits including Medicaid AFDC, WIC and
SSI. It is my view that this is an insult to legal aliens, such as my mother, who
observed our immigration laws and came to the U.S. through the proper channels.
However, the most striking fact about this issue is that there is no basis of law
or Supreme Court ruMng for the current interpretation. As I will explain further,
the Fourteenth Amendment and the debate surrounding it is very clear in its asser-
tion that "All persons bom or naturalized in the United States and subject to the
jurisdiction thereof are citizens of the United States". In addition, there has been
no Supreme Court ruling on a case dealing with the children of illegal aliens.
The Fourteenth Amendment to the Constitution was consistent with British com-
mon law and reconfirmed the consensual basis for citizenship. The Amendment was
crafted in such a way that if a person was granted federal citizenship, they were
26
automatically a citizen of their state of residence. The intent of the Foiirteenth
Amendment was to grant citizenship for newly freed slaves, and to supersede the
Dred Scott decision which stood in violation of the common law view of citizenship.
However, the 1866 Senate debate on the Amendment centered around the citizen-
ship status of American Indians. During the Senate debate. Senator Howard from
Michigan stated "Indians bom within the limits of the U.S. and who maintain their
tribal relations, are not, in the sense of the amendment, bom subject to the jurisdic-
tion." Senator Trumbull, the Chairman of the Judiciary Committee, posed this ques-
tion, "What do we mean by 'subject to the jurisdiction of the United States?' Not
owing allegiance to anyone else. That is what it means." This was reaffirmed by the
Senate Judiciary Committee in a report it issued on the status of Indian citizenship.
The report found them not to be citizens, because they were not "under the jurisdic-
tion of the United States" at the time the amendment was adopted. The Commit-
tee's opinion was that "the Fourteenth Amendment to the Constitution has no effect
whatever upon the status of the Indian tribes within the limits of the United
States."
Section 5 of the Fourteenth Amendment states that "The Congress shall have the
Eower to enforce, by appropriate legislation, the provisions of this article." Congress
as employed this Constitutional power bv enacting legislation which clarified the
citizenship status of American Indians. After passage of the Fourteenth Amend-
ment. Congress issued the "Act of July 15, 1870, in which a Winnebago Indian from
Minnesota was permitted to apply for citizenship, with the condition that the Indian
cease to be a member of the tribe, and his land be subject to taxation, the "Indian
Territory Naturahzation Act" of May 2, 1890 broadened the earlier act by allowing
any member of any Indian tribe or nation residing in Indian Territory to apply for
citizenship. From 1854 until 1924, citizenship was a common government incentive
to encourage the assimilation of Indians. Congress' authority to naturalize Indians
has been sustained by the courts in the cases of Elk v. Wilkins in 1884 and United
States. V. Celestine in 1909.
Indians were perceived to owe allegiance to their tribe, and were therefore, not
under the "obedience" of the United States. Indians could only be granted U.S. citi-
zenship by an act of Congress in which they had to renounce their allegiance to
their tribe. Today, those that are in the United States illegally are clearly not "sub-
ject to the jurisdiction thereor or rather obeying the federal government, as illus-
trated by the fact that they have chosen to violate our immigration laws. If illegal
aliens have babies on U.S. soil they, according to precedent, must demonstrate obe-
dience to our laws. This, as the historical record has demonstrated repeatedly, in
cases involving Indians, can be achieved only through acts of Congress. Indians
were not considered automatic citizens; by the same logic, therefore, children of ille-
ga\ aliens should not receive automatic citizenship.
There have been a number of notable court ruhngs addressing the issue of citizen-
ship. A federal district court in Oregon rules in the 1871 case ^ McKay v. Campbell
that tiie Fourteenth Amendment was merely declaratory of the common-law nile of
citizenship. The case involved a plaintiff whose father was a British subject and
whose mother was a Chinook Indian. It was ruled by the Court that Indians bom
in tribal allegiance were not bom in the U.S., and subject to the jurisdiction thereof.
The Court ruled that "to be a citizen of the U.S. by reason of his birth, a person
must not be bom within its territorial limits, but he also must be born subject to
its jurisdiction — ^that is, in its power and obedience". Under the obedience means
that they are obeying U.S. laws. If someone enters the U.S. illegally they are violat-
ing U.S. laws. This basic disobedience of U.S. immigration law, negates the illegal
alien as being "subject to the jurisdiction of the United States."
The court also ruled that it is the exclusive right of Congress to grant citizenship.
The plaintiff was not "bom a citizen of the United States, and can only become one
by compl5ring with the laws for the naturalization of aliens . . . But that is a matter
within the exclusive cognizance of Congress". Under this precedent. Congress may
act on the granting or narrowing of U.S. citizenship.
The finding of McKay v. Campbell were upheld in 1884 by the Supreme Court
case of Elk v. Wilkins. Here the Court held that an Indian living in the city of
Omaha, apart from his tribe, was not a citizen under the Fourteenth Amendment.
The Court relied on the Fourteenth Amendment's reqviirement that a citizen be bom
"subject to the jurisdiction" which it found not to apply to Mr. Elk, because he was
bom under tribal authority.
The Court ruled, and I quote, "the phrase 'subject to the jurisdiction thereof em-
braced only those who were subject to the complete jurisdiction of the United States,
which could not be properly said of Indians in tribal relations. But it was distinctiy
announced by the friends of the amendment that they intended to include in the
granting of national citizenship to Indians who were within the jurisdiction of the
27
states, and subject to their laws, because such Indians would be completely under
the jurisdiction of the United States." In its opinion, the Court quoted Senator
Trumbull from the original Senate debate of the Fovuteenth Amendment as saying,
"It is only those who come completely within our jurisdiction, who are subject to our
laws, that we think of making citizens."
Supreme Court Justice Cooley in the Elk v. Wilkins case, referred to the definition
of nationjd citizenship as contained in the Fovuteenth Amendment, saying that "By
the express terms of the amendment, persons of foreign birth, who have never re-
nounced the allegiance to which they were bom, though they may have residence
in this country, more or less permanent, for business, instruction, or pleasure, are
not citizens." He went on to say that Indians are "subject to the jurisdiction" of the
United States only in a much qualified sense; and it would be obviously inconsistent
with the semi-inaependent character of such a tribe, and with the obedience they
are expected the render to their tribal head, that they should be vested with the
complete rights — or, on the other hand, subjected to the full responsibilities — of
AiDftTncflTi citizftTis
In the case of the United States v. Wong Kim Ark, the plaintiff, Mr. Ark was bom
in San Francisco in 1873. His parents were legal immigrants from China and were
"domiciled residents of the United States." The Court held that Mr. Ark was a citi-
zen of the United States even through his parents owed allegience to the Emperor
of China.
This case was based upon the fundamental principle of the British common law.
Supreme Court Justice Gray, discussed this principle in the Court's opinion, that
"the children, bom within the realm, of foreign ambassador's, or the children of
alien enemies, bom dvuing and within their hostile occupation of part of the king's
dominions, were not natural-bom subjects, because [they were] not bom within me
allegiance, the obedience, or the power, or, as woxild be said at this day within the
jurisdiction of the king." The Wong Kim Ark case was consistent in this regard with
British common-law. •
However, the major distinction with this case was that Wong Kim Ark's parents
had come to America legally. The Supreme Court has never ruled on the case of
a child or someone who had come to America illegally. It has only ruled on the nar-
row factual case of children of legal immigrants.
Along with the benefits of being a citizen of the United States come certain re-
sponsibilities. Included in the oath of allegiance, the candidate pledges to defend the
(jonstitution and laws of the United States of America against all enemies foreign
and domestic; bear true faith and allegiance; and bear service in the armed forces.
By the same token, non-citizens are not eligible for jury duty or eligible to vote. This
issue of the responsibilities of a citizen is called into question by a number of dif-
ferent scenarios. If a child bom in the United States to a Mexican citizen who is
in the United States illegally is called upon to serve in the U.S. military, would that
person be obligated to serve? Because Mexico allows their citizens to have dual citi-
zenship, would it not be possible for the individual to claim that he or she does not
have to serve in the U.S. military because he owes allegiance to Mexico? I, as a child
of a legal immigrant, could not claim that I did not want to serve in the U.S. mili-
tary because my mother became a U.S. citizen by obeying by the laws of the United
States. This is merely a hypothetical situation, however, it brings into question the
complexities of dual citizenship.
The above mentioned is the historical context and some theoretical questions; in
the present, there is the very tangible question of cost to local counties and states
that bear the brunt of the burden of caring for the children of illegal ahens. The
nearly 96,000 babies who were bom to undocumented women covered by the Medi-
Cal program in 1992 represented an 85 percent increase over three years. In 1992
alone, the cost to California taxpayers was more than $230 million in medical bills.
In my county of San Diego, the county estimates that the total cost for undocu-
mented immigrants from 1992 to 1993 was over $64 million. These are costs that
counties and states just simply cannot afford, especially when a large percentage of
these costs are incurred outside the parameters of any true basis of law or Supreme
Court ruling.
Let me be clear in one essential point. I do not blame young mothers for wanting
the best health care possible for themselves and their babies, or to give their chil-
dren the option of a better life in America. It is by no fault of their own that the
United States' failed immigration policies have resulted in their being encouraged
to come into this country illegally. However, their plight or predicament does not
give them a free pass to circumvent those who are trying to work within the system
to come to America legally. By the same token, it is also not the fault nor the re-
sponsibility of the American taxpayer, who is paying for these costs through less
benefits and higher taxes.
28
Although a number of my colleagues advocate a constitutional amendment to cor-
rect this interpretation of the law, it is my view that this would be superfluous. The
fact that the Supreme Court has never ruled on this issue, coupled with the dif-
ficulty of passing an amendment to the Constitution, gives strengUi to my argument
of implementing this change statutorily. The Congress has demonstrated its author-
ity to act under Section 5 of the Fourteenth Amendment by granting citizenship to
American IncUans. The Congress' elected status and our position as co-equal
branches of government, gives our actions great weight in the Supreme Court.
Therefore it is under Congress' pxuview to define more clearly the intention of the
framers of the Fourteenth Amendment as to who is and who is not a citizen of the
United States. We should exercise this purview by amending the Immigration and
Naturalization Act. Should this be found to be unconstitutional, then, and only then
would a Constitutional amendment be necessary. However, until such time, it is
clearly and completely within the authority of the Congress of the United States to
further define citizenship laws of our great country.
Again, I would like to thank you. Chairman Smith, Chairman Canady and the
members of the Subcommittees for allowing me the opportunity to testify before you
iJiis morning and I look forward to an open and honest debate on this issue.
Mr. Smith. Thank you, Mr. Bilbray. Let me note that we have
been joined by Congressman Fred Heineman and Congressman Ed
Bryant, as well as the chairman of the Judiciary Committee, Henry
Hyde. I appreciate you all being here.
Congressman Luis Gutierrez, you are recognized. You are here as
a representative of the Hispanic Caucus.
STATEMENT OF HON. LUIS V. GUTIERREZ, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. Gutierrez. Thank you very much, Mr. Chairman. Mr.
Chairman, I want to thank you for the opportunity to testify on be-
half of the Hispanic Congressional Caucus on various proposals to
deny U.S. citizenship to children bom in our nation to noncitizen
parents. I strongly believe that these proposals, both the constitu-
tional amendments and the statutory method are remarkably
shortsighted, divisive, and completely unwarranted attacks both on
our Constitution and on the core values that we as Americans em-
brace, fight for and strive to live by every day.
I could devote my entire testimony to recounting the 130 years
of legal precedent detailing why the proposals of Mr. Stockman,
Mr. Gallegly, Mr. Bilbray, and Mr. Foley are unconstitutional or
counter to the intent of the 14th amendment, but I think this testi-
mony is best left to a long line of legal experts who are very trou-
bled by these proposals. Let me instead consider the basic question.
Should we deny citizenship to an entire group of people, people
bom in America?
Let me answer by quoting a Republican. A Republican leader
who also had to consider whether we should deny citizenship to an
entire group of people bom in America. A Republican leader who
faced a decision how to respond to a Supreme Court that wanted
to deny these rights. How did that Republican leader respond to
the idea that America should deny citizenship to an entire group
of people? He said that idea, "Does obvious violence to the plain,
unmistakable language of the Declaration of Independence. It
leaves the Declaration assailed and sneered at and construed and
hawked at and torn until if its framers could rise from their graves,
they could not recognize it at all." That Republican was Abraham
Lincoln.
29
The idea was Justice Roger Taney's Dred Scott decision, wHich
denied the right of citizenship to all blacks merely because they
were black. Our greatest president answered that idea with cour-
age. That Republican faced with exclusion, chose unity. Lincoln
took a stand, a stand that our Nation should not abandon the
words of the Declaration of Independence, the idea that "We hold
these truths to be self-evident, that all men are created equal."
Now the proposals before this committee make a very different
declaration, that today, "we hold these truths to be self-evident
that all men except those born to noncitizens are created equal."
The proposals we consider today, that where Lincoln chose brother-
hood, we should choose division. These bills, no matter how many
legal niceties their sponsors would like to give, seek to accomplish
one basic goal, undermining our Nation's historical and fundamen-
tal commitment to equality for all people.
But Lincoln was right. Denying citizenship to an entire group of
people at our whim leaves the Declaration of Independence as-
sailed. It leaves the Constitution frayed. It steals from the Amer-
ican people a principle that is at the foundation of what makes our
nation great, a commitment to equality.
Unfortunately, the stab at the heart of the Constitution and the
Declaration of Independence is wrapped in rhetoric concerning a
serious national problem. Sponsors of these proposals want us to
believe that by punishing children our Nation's immigration prob-
lems will somehow magically disappear. Unfortunately, absolutely
no evidence exists that supports this claim.
First and most obviously, adoption of any of these bills would
mainly serve to create hundreds of thousands of more undocu-
mented residents, and continue to create more every time a child
was born to a noncitizen. The very people who want fewer nonciti-
zens will be doing nothing except add more and more to our Na-
tion. And more significantly, widen the current gulf of resentment
and animosity between Americans based on their immigration sta-
tus.
Second, proponents of this idea often talk of the costs associated
with illegal immigration. But those costs are in no way addressed
by these proposals. In fact, no study has ever suggested that these
plans would lessen the number of undocumented residents bom in
our nation.
Finally, these proposals would threaten the health of mothers
and children across our Nation. This legislation would turn health
care professionals into INS agents and discourage mothers from
seeking proper medical care before their children are bom. And not
only mothers who are not citizens, any mother or parent who might
not look like a citizen would also be subject to questioning or sus-
picion.
I would ask my friends on the committee and here in Congress,
do I look like a citizen? I wonder if they would think my wife looks
like a citizen. I wonder if the official at the hospital, who under
these proposals would be responsible for determining what children
are bom to criminals and what children are born innocent, would
they have looked at my wife and two beautiful daughters, "Do they
look like citizens?" I can make a very confident guess that my wife,
who is a U.S. citizen, whose parents and grandparents are U.S.
23-492 0-96-2
30
citizens, would have attracted a lot more attention than the wives
of many of my colleagues who are here in Congress today.
These are just a few brief examples of how unworkable and inef-
fective the proposals before us are. The Congressional Hispanic
Caucus is eager to work for responsible, reasonable and constitu-
tional ways to combat illegal immigration. We are not willing to
traffic in discrimination and misery. That is what these proposals,
I believe, would mean. They mean real human suffering, suffering
that will be experienced mainly by children.
So if our basic American decency, if respect for our Constitution
and our Declaration of Independence are not good enough reasons
for us to reject these bills, let me suggest one other source. In the
Bible, in Ezekiel, it is written, "the son shall not bear the iniquity
of the father." Yet that burden is precisely what these amendments
force upon the children of noncitizens. This subcommittee must
take a stand. Will we punish children because of the actions of
their parents? Will we trade the words and wisdom of Thomas Jef-
ferson, Abraham Lincoln for the sound bites and headlines that an
entirely ineffective policy brings? Will we so casually abandon our
national commitment to equality?
The committee can and should answer no. Because if we answer
yes, not just immigrants or noncitizens will be losing something.
Every American will be losing something. We will be losing a little
more of our national identity, a little more of our national char-
acter, a little more of what it means to be an American to say with
pride we live in the greatest Nation in the world, a Nation "con-
ceived in liberty and dedicated to the proposition that all men, that
all men are created equal." Please reject these proposals. Thank
you for the opportunity to testify.
[The prepared statement of Mr. Gutierrez follows:]
Prepared STATEME^fT of Hon. Luis V. Gutierrez, A Representative in
Congress From the State of Illinois
Mr. Chairman, I thank you for the opportunity to testify on behalf of the Congres-
sional Hispanic Caucus on the various proposals to deny U.S. citizenship to children
bom in our nation to non-citizen parents.
I strongly believe that these proposals — both the Constitutional Amendments sup-
Eorted by Representative Gallegly and others — and the statutory method supported
y Representative Bilbray — are remarkably short-sighted, divisive and completely
unwarranted attacks both on our Constitution and on the core values that we as
Americans embrace, fight for and strive to live by every day.
Chir Constitution is clear on whedier the children of non-citizens are citizens of
oxir nation. The 14th Amendment reads:
"All persons bom in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the states wherein they reside."
My colleagues suggest that it is time to take that right away.
Now, I could devote my entire testimony to recounting 130 years of legal prece-
dent detailing why the proposals of Mr. Stockman, Mr. Gallegly, Mr. Bilbray and
Mr. Foley are unconstitutional or counter to the intent of the 14th Amendment.
But I think this testimony is best left to the long line of legal experts who are
very troubled by these proposals.
Let me instead consider the basic question.
Should we deny citizenship to an entire group of people — people bom in America?
Let me answer by quoting a Republican.
A Republican leader who also had to consider whether we should deny citizenship
to an entire group of people, bom in America.
A Republican leader who faced a decision — ^how to respond to a Supreme Court
that wanted to deny those rights.
How did that Republican leader respond to the idea that America should deny
citizenship to an entire group of people?
31
He said that idea, quote, "does obvious violence to the plain, unmistakable lan-
guage of the Declaration of Independence. It leaves the Declaration assailed, and
sneered at, and construed, and hawked at, and torn — till, if its framers could rise
from their graves, they coiild not at all recognize it."
That RepubUcan was Abraham Lincoln.
The idea was Justice Roger Tane^s Dred Scott decision — which denied the right
of citizenship to all blacks, merely because they were black.
Our greatest President answered that idea with courage. And because he did, the
14th Amendment was bom, and America became a greater, stronger nation.
That Republican, faced with exclusion, chose unity.
Lincoln took a stand — a stand that our nation should not abandon the words of
the Declaration of Independence — the idea that "we hold these truths to be self-evi-
dent— that all Men are created equal."
Now, the proposals before this committee make a verv different declaration — that
today "we hold these truths to be self-evident — that all Men — except those bom to
non-citizens — are created equal."
The proposals we consider today suggest that where Lincoln chose brotherhood,
we should choose division.
These bills — no matter how many legal niceties and political arguments their
sponsors would like to give — seek to accomplish one basic goal — undermining our
nation's historic and fundamental commitment to quality for all people.
Lincoln was right — denying citizenship to an entire group of people at our whim
leaves the Declaration of Independence assailed.
It leaves the constitution frayed.
And it steals from the American people a principle that is at the foundation of
what makes our nation great — a commitment to equality.
Unfortunately, this stab at the heart of the Constitution and the Declaration of
Independence, is wrapped in rhetoric concerning a serious national problem.
Sponsors of these proposals want us to believe that by punishing children our na-
tion s immigration problems will somehow magically disappear.
Unfortunately, absolutely no evidence exists that supports these claims.
In fact, even if we were willing to abandon our historic commitment to equality
and pass this bill, we would only worsen our immigration problem.
First — and most obviously — adoption of any of these bills would mainly serve to
create hundreds of thousands more undocumented residents, and continue to create
more every time a child was born to a non-citizen.
The very people who now want fewer non-citizens will do nothing except add
more, and more, to oiu* nation — and more significantly, widen the current gulf of
resentment and animosity between Americans based on their immigration status.
Second, proponents of this idea often talk of the costs associated with illegal im-
migration. But those costs are in no way addressed by these proposals — in fact, no
study has ever suggested that this plan would lessen the number of undocumented
residents in our nation.
Finally, these proposals would threaten the health of mothers and children across
our nation. This legislation would turn health to care professionals into INS agents
and discourage mothers to seek proper medical care before their children are bom.
And not only mothers who are not citizens. Any mother, or parent, who might not
look like a citizen would also be subject to questioning or suspicion.
I would ask my friends Mr. Bilbray or Mr. Stockman, Do I look like a citizen?
I wonder if you would think my wife looked like a citizen?
I wonder if the official at the hospital — who under your proposals would be re-
sponsible for determining what children are bom criminals and what children are
bom innocent — would have thought my wife looked like a citizen when she gave
birth to our two wonderful daughters?
I can make a very confident guess that my wife — who is a U.S. citizen — whose
parents and grandparents are U.S. citizens — would have attracted a lot more atten-
tion than the wives of any of my colleagues who have introduced these bills.
These are just a few, brief examples of how unworkable and ineffective the pro-
posals before us are.
The Congressional Hispanic Caucus is eager to work for reasonable and constitu-
tional ways to combat illegal immigration.
But we are not willing to traffic in discrimination and misery.
And that is what these proposals mean.
They mean real, human suffering — suffering that will be experienced mainly by
children.
So if our basic American decency, if respect for our Constitution and Our Declara-
tion of Independence are not good enough reasons for us to reject these misguided
bills, then let me suggest one other source.
32
In the Bible, in Ezekiel it is written, "the son shall not bear the iniquity of the
father."
The son shall not bear the iniquity of the father.
Yet that biu-den is precisely what these amendments force upon the children of
non-citizens.
This Subcommittee must take a stand.
Will we punish children because of the actions of their parents?
Will we trade the words and wisdom of Thomas Jefferson and Abraham Lincoln
for the sound bites and headlines that an entirely ineffective poUcy brings?
Will we so casually abandon our national commitment to equality?
This subcommittee can, and should, answer no.
Because if we answer yes, not just immigrants or non-citizens wiU be losing some-
' thing.
Every American will be losing something.
Well be losing a Uttle more of our national identify, a little more of our national
character, a Uttle more of what it means to be an American — to say, with pride, we
live in the greatest nation in the world, a "nation, conceived in liberty and dedicated
to the proposition that all men — that all men — are created equal."
Please, reject these proposals.
Thank you for the opportunity to testify.
Mr. Smith. Thank you, Mr. Gutierrez. Congressman Tony Beilen-
son. Yes, Sonny.
Mr. Callahan. Excuse me, Mr. Chairman. My foreign operations
bill is coming up on the floor now. I would just like to respectfully
ask the committee that during this process they also consider my
bill, which is H. Res. 88, which is the bill that denies citizenship
even to legal aliens who come here solely for the purpose of having
a child here in the United States.
Mr. Smith. OK Sonny, thank you. If you want, I'm sure the rest
of the panel wouldn't object if we went straight to you if you want
to make a longer statement.
Mr. Callahan. I appreciate it, but the Rules Committee is bring-
ing my bill up and I've got to go there. But mine simply says that
unless the child has a parent who is a legal citizen, he or she can
not gain citizenship automatically.
STATEMENT OF HON. ANTHONY C. BEILENSON, A REPRESENT-
ATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Beilenson. Thank you very much, Mr. Chairman. Since I
am going to leave out a good portion of my statement, perhaps
you'll include the full statement in the record.
Mr. Chairman, I appreciate this opportunity to come and testify
before your subcommittee in support of den5dng automatic birth-
right citizenship to U.S. bom children of illegal immigrants. Al-
though your opening comments and those subsequent ones of my
friend and colleague, Mr. Gallegly, pretty much cover the water-
front, I'll add a few things if I may. As I suggested just a moment
earlier, Mr. Chairman, perhaps my full statement could be in-
cluded in the record.
Because it appears to be necessary — I hope it's not, perhaps it's
not; maybe our friend from San Diego is correct that it can be done
by statute, and that's fine, we should try that. But many of us have
been led to believe in looking at this quite carefully over the past
few years that it appears to be necessary to amend the 14th
amendment of the Constitution to achieve that goal. Because of
that, I too have introduced a proposed constitutional amendment,
H.J. Res. 56, for that purpose. This particular proposal, very simi-
lar to Mr. Gallegl/s, would provide that automatic U.S. citizenship
33
for persons bom in this country will be granted only to the children
of citizens and persons with a legal resident mother or father.
The issue of birthright citizenship is of course one of the most
difficult and emotional issues in the debate over controlling illegal
immigration. We are a Nation that has taken great pride in ex-
panding the civil rights of groups of people through the years. The
notion of denying an existing right to any class of people, no matter
how sensible it may be, is something that goes against our nature
as Americans. Furthermore, many of us have such deep respect for
the Constitution that we are reluctant to support amending it, ex-
cept for the most compelling of reasons.
However, the situation that we are addressing — the automatic
conferring of citizenship on children of people who have entered our
country in violation of our laws — is so unfair — and unintended
when the 14th amendment was first adopted — ^that it does provide,
I believe, one of those rare compelling reasons for amending the
Constitution. As you know, and as you have been reminded today,
the 14th amendment, which confers citizenship on all persons born
in the United States, was adopted shortly after the Civil War in
order to ensure that benefits and privileges of citizenship for Afri-
can-Americans, for the newly freed slaves, which they had been de-
nied by the Supreme Court's Dred Scott decision.
Because the United States did not limit immigration in 1868
when the 14th amendment was ratified, and therefore there were
no illegal immigrants at that time, the issue of citizenship for chil-
dren of illegal immigrants obviously was nonexistent. Thus, the
granting of automatic citizenship to these children is a totally inad-
vertent and unforeseen result of the amendment. This grant of citi-
zenship to U.S. born offspring is one of several factors that make
illegal immigration attractive. Mr. Gallegly spoke to that, and I'll
skip over my remarks on that.
However much the granting of citizenship to offspring serves as
a strong incentive for illegal immigration, the fact remains that it
serves as a reward for entering this country in violation of our
laws. That is fundamentally unfair. While millions of people
around the world wait patiently, sometimes for many years, to im-
migrate legally to the United States, those individuals who manage
to circumvent our immigration laws are rewarded by having their
children granted the greatest benefit that we as a nation can confer
on individuals. We are in effect, Mr. Chairman, saying that if you
break our laws and if you are successful in sneaking across our
borders and you have children here, we will reward you by grant-
ing citizenship to those children.
We also have the anomalous situation that favors children of one
illegal family over another. If a mother and father come across the
borders illegally with a young child, that child does not have citi-
zenship. But if a similar young mother and father come across the
border illegally and a month later, a day later, a year later have
a child, that child is a citizen. There is no legitimate reason for
that distinction between those two families, those two children.
Granting birthright citizenship in these cases can also end up, as
Mr. Gallegly pointed out and the chairman too, rewarding parents
economically for being here illegally. Although illegal aliens are not
eligible for welfare benefits, their U.S.-born children may of course
34
qualify for aid to families with dependent children [AFDC], and for
other benefits granted to citizens. Again, Mr. Gallegly and the
chairman used this data. But speaking only of California, the Cali-
fornia Department of Social Services estimated that in the last fis-
cal year, almost 200,000 children of illegal immigrants received
welfare, in a cost in excess of half a billion dollars,
I'd also point out, and I think this is quite relevant to what we
are doing here this year, Mr. Chairman, that under welfare reform
provisions that were included in the budget reconciliation bill, se-
vere restrictions, as you all recall, on eligibility for most Govern-
ment benefits would be placed on some legal immigrants. If those
restrictions are in fact enacted, and they may well be, we would be
in the ironic, illogical and unfair position of denying benefits for
immigrants who are here legally, while granting them for children
of people who are here illegally.
While as I said earlier, it goes against our nature to withdraw
rights for any group of people, I would point out that in areas
where people feel the impact of illegal immigration, where people
live with the problem day in and day out, there is a great deal of
support for changing the provision of birthright citizenship. I re-
cently surveyed my own constituents on a number of topics. This
will take just one half more additional minute, and I think it's per-
haps of use, Mr. Chairman. One of the questions I asked was, "Do
you support eliminating the automatic granting of citizenship to
U.S. born children of illegal immigrants?" The response was over-
whelmingly favorable. Eighty-three percent of the respondents sup-
ported this proposal. Only 17 percent were opposed. This is not a
particularly conservative group. Seventy-nine percent of these same
respondents supported the ban on assault weapons. Seventy-eight
percent opposed additional restrictions on abortion. Sixty-four per-
cent opposed allowing organized prayer in public schools. So this
was a moderate to liberal group, with some conservative folks in-
volved here. Eighty-three percent support this constitutional
amendment.
I strongly believe, Mr. Chairman, if more Americans had the
same exposure to the high rate of illegal immigration as those of
us in California and other States with high rates of illegal immi-
gration have, there would be overwhelming support for such a con-
stitutional amendment. I thank you again for allowing me to tes-
tify.
[The prepared statement of Mr. Beilenson follows:]
Prepared Statement of Hon. Anthony C. Beilenson, a Representative in
Congress From the State of California
Mr. Chairman, I appreciate the opportunity to testify before your subcommittee
in support of denying automatic birthright citizenship to U.S.-bom children of illegal
immigrants. Because it appears to be necessary to amend the Fourteenth Amend-
ment of the Constitution to achieve that goal, I have introduced a proposed Con-
stitutional amendment. H.J. Res. 56, for that purpose. This proposal, which I hope
this subcommittee will consider, would provide that automatic U.S. citizenship for
persons born in this country will be granted only to the children of citizens and per-
sons with a legal resident mother or father.
The issue of birthright citizenship is one of the most difficult and emotional issues
in the debate over controlling illegal immigration. We are a nation that has taken
great pride in expanding the civil rights of groups of people through the years, and
the notion of denjdng an existing right to any class of people — no matter how sen-
sible it may be — is something that goes against our nature as Americans. Further-
35
more, many of us have such deep respect for the Constitution that we are reluctant
to support amending it, except for the most compelling of reasons.
However, the situation we are addressing — the automatic conferring of citizenship
on children of people who have entered our country in violation of our law — is so
unfair that it does provide one of those rare compelling reasons for amending the
Constitution.
As you know, the Fourteenth Amendment, which confers citizenship on all per-
sons bom in the United States, was adopted shortly after the Civil War in order
to ensure the benefits and privileges of citizenship for African-Americans, which
they had been denied by the Supreme Court's disastrous Dred Scott decision. Be-
cause the U.S. did not limit immigration in 1868 when the Fourteenth Amendment
was approved, and therefore there were no illegal immigrants, the issue of citizen-
ship for children of illegal immigrants was nonexistent. Thus, the granting of auto-
matic citizenship to these children is a totally inadvertent and unforeseen result of
the amendment.
This grant of citizenship to U.S.-bom offspring is one of several factors that make
illegal immigration attractive. The primary draw, of course, is the availability of
jobs, but there is evidence that at least some illegal immigration is for the purpose
of gaining citizenship. For example, one survey conducted under the auspices of the
University of California found tnat of new Hispanic mothers in California's border
hospitals, 15 percent had crossed the border specifically to give birth, and one quar-
ter of those mothers said that their motive was to ensure U.S. citizenship for their
children. And, the fact that an estimated two-thirds of births in public hospitals in
Los Angeles County are to illegal immigrant mothers is an indication that, for what-
ever reason, a great number of children are becoming U.S. citizens by virtue of
being bom to parents who are in the U.S. in violation of our laws.
Whether the granting of citizenship to offspring serves as a strong incentive to
illegal immigration or not, the fact is it serves as a reward for entering this country
in violation of our laws. And that is fundamentally unfair. While millions of people
around the world wait patiently — sometimes for many years — to immigrate' legally
to the U.S., those individuals who manage to circumvent our immigration laws are
rewarded by having their children granted the greatest gift that we as a nation con-
fer on individuals.
Granting birthright citizenship in these cases can also end up rewarding parents
economically for being here illegally. Although illegal aliens are not eligible for wel-
fare benefits, their U.S.-bom children may qualify for Aid to Families with Depend-
ent Children (AFDC) and other benefits granted to citizens. Based on data collected
in California for AFDC's "children-oniy cases, the California Department of Social
Services estimated that in fiscal 1994-1995, 193,800 children of illegal immigrants
received welfare, at a total cost of $553 million.
In addition, illegal immigrant parents are further rewarded by the protection
against deportation they may gain by giving birth to a child here. The Immigration
and Naturalization Service, from what I understand, is reluctant to deport families
if it will cause undue hardship for the U.S. citizen-child; no doubt "undue hardship"
could be claimed in many such cases.
I would also point out that, under welfare reform provisions that were included
in the budget reconciliation bill, severe restrictions on eligibility for most govern-
ment benefits would be placed on legal immigrants. If those restrictions are enacted,
we would be in the ironic, illogical, and unfair position of denying benefits for immi-
grants who are here legally, while granting them for children of people who are here
illegally.
While, as I said earlier, it goes against our nature to withdraw rights for any
group of people, I would point out that in areas where people feel the impact of ille-
gal immigration — where people live with the problem day in and day out — there is
a great deal of support for changing the provision of birthright citizenship.
I recently surveyed my constituents on a number of topics, and one of the ques-
tions I asked was: "Do you support eliminating the automatic granting of citizenship
to U.S. born children of illegal immigrants?" The response was overwhelmingly fa-
vorable: 83 percent of the respondents supported this proposal, while only 17 per-
cent were opposed. And this is not a particularly conservative group: 79 of those
same respondents supported the ban on assault weapons; 78 percent opposed addi-
tional restrictions on abortion, and 64 percent opposed allowing organized prayer in
public schools.
I strongly believe that, if more Americans had the same exposure to the high rate
of illegal immigration that our constituents in California and other states with high
rates of illegal immigration have, there would be tremendous support for a Constitu-
tional amendment to deny such birthright citizenship for U.S.-bom children of ille-
gal immigrants.
36
Fiirthermore, denying birthright citizenship in such cases would bring our laws
in line with those of most European and Asian countries, which Umit citizenship to
the children of citizens, and use place of birth as a basis for citizenship only in ex-
ceptional circiunstances. The United Kingdom, in fact — where our own citizenship
laws have their roots — used to have birthright citizenship, but since 1981, because
of immigration pressures, has required that one pairent be a legal resident.
Finally, I would like to comment on the issue of whether we can change the birth-
right provision statutorily, which of course would be much easier to do. When 1 re-
viewed this issue closely a few years ago, I became convinced that a statute at-
tempting to interpret or Umit the Fourteenth amendment would not pass Constitu-
tional muster.
The sentence in the Fourteenth Amendment relevant to citizenship states: "AU
persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside." The
statutory approach to limiting automatic birthright citizenship calls for defining per-
sons born to illegal or nonimmigrant alien mothers as not being bom "subject to the
jurisdiction" of the United States, but rather as being bom subject to the foreign
country of which the mother is a national or citizen.
In order for the Supreme Court to accept a statutory definition of "subject to the
jvuisdiction" of the United States, it would have to construe two previous decisions
on the Fourteenth Amendment — United States v. Wong Kim Ark and Plyler v. Doe —
so narrowly as to make them practically meaningless with respect to citizenship. In
essence, the Court would have to reverse a century of understanding of what the
Fourteenth Amendment means. That seems so unlikely that, rather than pass a
stetute that appears certain to be ruled unconstitutional, I believe it makes more
sense for Congress to proceed with a Constitutional amendment.
Illegal immigration is one of the fastest growing and most pressing problems fac-
ing our nation. The Constitutional amendment proposed by my legislation and oth-
ers is a reasonable response to this issue that would restore a sense of fairness in
our nation's granting of citizenship. I urge this subcommittee to move forward with
such an amendment.
Mr. Smith. Thank you, Mr. Beilenson. Congresswoman Zoe
Lofgren.
STATEMENT OF HON. ZOE LOFGREN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. LoFGREN. Thank you, Mr. Chairman. Thank you for allowing
me to testify today. I am here certainly as a Member of Congress,
but also as a Califomian who very much opposes and is deeply
troubled by the bills before us.
For hundreds of years, our Nation has subscribed to the common
law precept of jus soli, which recognizes that citizenship is based
on the place where a person is bom. This rule was accepted as the
law for our new democracy, and ultimately codified in the 14th
amendment and Civil Rights Act of 1866. These congressional ac-
tions were in response to an anomalous and of course infamous Su-
preme Court decision, Dred Scotty which denied citizenship rights
to freed slaves. In 1866, during Senate debate on the 14th amend-
ment, one legislator, Senator Conness, said, "I voted for the propo-
sition to declare that the children of all parentage whatever, born
in California, should be regarded and treated as citizens of the
United States, entitled to equal civil rights with other citizens of
the United States."
I think it is disturbing that we are actually contemplating a con-
travention of constitutional and civil rights as expressed by the
39th Congress. I think that as elected representatives, we should
be if anything, more enlightened than American society and the
Congress of 130 years ago.
Following its passage, the 14th Amendment was interpreted by
the Supreme Court as an affirmation of the traditional jus soli rule,
37
and in Wong Kim Ark v. the United States, the court held that the
"14th amendment . . . has conferred no authority upon Congress
to restrict the effect of birth declared by the Constitution to con-
stitute a sufficient and complete right to citizenship." It would be
very difficult for the Court to be more clear on this point, and I
think it casts much doubt on the constitutionality of any of the bills
purporting to alter the right to citizenship at birth.
Franklin Delano Roosevelt once said, "We are a Nation of many
nationalities, many races, many religions, bound together by a sin-
gle unity, the unity of freedom and equality." A bedrock principle
of this equality is that all people enjoy the same rights and privi-
leges based on their individual existence. You can not be con-
demned in America by the Government for your cultural or reli-
gious background or for anything your parents might have done.
The proposals before us would do just this.
This country was founded as a nation of immigrants. Immigrants
and their children have contributed to our success as an economic
and political superpower. Captains of industry, like Lee lococca,
former Joints Chief of Staff, Gen. Colin Powell, all came to America
from elsewhere or their parents did. We draw strength from our di-
versity and we learn from our differences.
While immigration to America entails both benefits and chal-
lenges, which I am well aware of as a Californian, the melting pot
that is America remains a symbol of tolerance and a model of as-
similation across the globe. I find it ironic indeed that many of the
people, not necessarily members of this committee, who espouse the
need for these bills, urge us to unite under one language, and seek
one religion to rule our Nation, yet would divide us according to the
circumstances of our birth.
I think this legislation is offensive in other ways because it dis-
advantages the most vulnerable members of our society, infants,
who through no fault or actions of their own, are born to parents
of undocumented status. How are these babies different in a con-
stitutional or legal sense from the offspring of American citizens?
The obvious answer is that they are not. As the Supreme Court
held in Plyler v. Doe, undocumented children are "innocent" and
"can neither affect their parents conduct nor their own status."
The damage to the Constitution and to our democracy that these
proposals would render by itself is reason enough to reject them.
While many in our country have concerns, and I do as well, about
unlawful immigration, we should measure carefully our remedies,
to ensure that whatever remedy we devise for the issue of illegal
immigration, does not in the long run create more problems for our
country than it solves. I think these proposals fail on that measure
as well.
As many of you know, I taught at law school, an immigration
course for several years at the University of Santa Clara. I also
practiced immigration law, and I thought about these measures
from a practical point of view as well. As I'm sure you are aware,
there are many countries in the world that do not recognize as citi-
zens children of citizens who are bom abroad. In fact, derivative
citizenship is not always available to the offspring of American citi-
zens who give birth abroad. It needs to be vested, with limited time
frames involved. That is equally true around the country.
38
I have thought, how would this work if you have the offspring
of an undocumented immigrant here, who has no rights to be a citi-
zen of any other country? And as you think forward, what
generational divisions would result if that child should have a
child? You would face the potential of creating really a separate
and distinct class in society that is unknown to America, and I
think damaging to the fabric of our society.
I would note also that nations where similar measures have been
in place, for example Grermany and others, that have created per-
manent and perpetual underclasses of noncitizens, stateless per-
sons, have faced enormous political division and turmoil as a con-
sequence. So we should proceed very cautiously in this matter.
I will submit the remainder of my statement for the record.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Lofgren follows:]
Preapred Statement of Hon. Zoe Lofgren, A Representative in Congress
From the State of California
I would like to thank my Colleagues on the Judiciary Committee, Chairman
Smith and Chairman Canady, for the opportunity to give testimony on this impor-
tant issue.
1 asked to be here today because I am very concerned about these proposals,
which I consider to be attacks on the Constitution.
For hundreds of years, our nation has subscribed to the common law precept on
jus soli, which recognizes that citizenship is based on the place where a person is
bom. This rule was accepted as the law for our new democracy and ultimately codi-
fied in the Fourteenth Amendment and the Civil Rights Act of 1866. These congres-
sional actions were in response to an anomalous and infamous Supreme Court deci-
sion, Dred Scott, which denied citizenship rights to freed slaves.
In 1866, during Senate debate on the Fourteenth Amendment, one legislator, Sen-
ator Conness, proclaimed, "I vote for the proposition to declare that the children of
all parentage whatever, bom in California, should be regarded and treated as citi-
zens of the United States, entitled to equal civil rights with other citizens of the
United States."
I must say that I find it disturbing that we are actually contemplating a con-
travention of Constitutional and civil rights as expressed by the 39th Congress. I
would hope that we as a country, and as elected representatives, are, if anything,
more enlightened than the American society and Congress of 130 years ago.
Following its passage, the Fourteenth Amendment was interpreted by the Su-
preme Court as an affirmation of the traditional jus soli rule and in Wong Kim Ark
V. the United States the Court held that the "Fourteenth Amendment . . . has con-
ferred no authority upon Congress to restrict the effect of birth, declared by the
Constitution to constitute a sufficient and complete right to citizenship." It would
be very difficiilt for the Court to be more clear purporting to alter the right to citi-
zenship at birth.
President Franklin Delano Roosevelt once said, "We are a nation of many nation-
alities, many races, many religions — bound together by a single unity, the unity of
freedom and equality." A bedrock principle of this equality is that all people enjoy
the same rights and privileges based on their individual existence. You cannot be
condemned by the government for your cultural or religious background or for any-
thing your patents might have done. The proposals before us would do just this.
This country was founded as a nation of immigrants, and immigrants and their
children have contributed much to our success as an economic and political super-
power. Captains of industry, like Lee lacocca, were bom to immigrants. The parents
of the former Chairman of the Joint Chiefs of Staff, General Colin Powell came to
American from Jamaica. We draw strength from our diversity, and learn from our
differences.
While immigration to America entails both benefits and challenges, the melting
pot that is America remains a symbol of tolerance and a model of assimilation
across the globe. I find it extraordinarily ironic that many of the same people that
espouse the need for us to unite under one language and one religion woiild seek
to divide us according to the circumstances of our birth.
39
This legislation is also offensive because it would disadvantage some of the most
vulnerable members of our society — infants, who through no fault or actions of their
own, are bom to parents of undocumented immigrant parents. How are these babies
different, in a constitutional or legal sense, from the offspring of American citizens?
The obvious answer is that they are not. As the Supreme Court held in Plyler v.
Doe, undocumented children are "innocent" and "can neither affect their parents'
conduct nor their own status."
The damage to the Constitution and to our democracy that these proposals would
render by itself is reason enough to reject them. While many in our country have
concerns about unlawful immigration, we should measure carefully any remedies to
ensure that any remedy does not have more long term problems than the issue we
are attempting to address.
However, I also believe that it is interesting to look at the practical effects that
would result from the enactment of this legislation.
One result would be that many American-born, would-be citizens, would instead
be rendered "stateless," citizens of no country. Many countries do not automatically
ascribe citizenship based on parental citizenship. For instance, the child of an Amer-
ican bom overseas can obtain derivative citizenship through its parents, but only
if it returns to claim it within a set period of time.
Therefore, a child bom here to foreign parents could very conceivably be without
a country, as would all of his or her descendants if he or she did not marry a citizen.
These people would have nowhere else to go, and would be forced to remain here,
hoping to avoid detection by the government. With policies such as these we could
be creating perpetual generations of stateless, undocumented aliens. I do not see
how this constructively addresses the illegal immigration problem.
Another likely outcome would be chaos in maternity wards and incredible admin-
istrative burdens for the doctors, nurses, and hospital administrators that provide
obstetric care to women having babies. They would have to assist the government
in establishing the immigration status of all mothers who are giving birth or have
just given birfli. Most women don't think to bring proof of immigration status to the
delivery room. The costs and increased bureaucracy that such a system would create
are obvious.
Fiulhermore, one can see the likelihood of suspicion and discrimination based on
ethnicity, which have no place in places of birth or healing. Any woman, regardless
of immigration status, should not be deterred from receiving the prenatal and
neonatal care that she needs. Such policies could actually increase the cost of illegal
immigration to our health care system, because, as studies have shown, we can
avoid the expense of numerous premature births with much less expensive prevent-
ative prenatal care.
It also is questionable that this change in policy would have any demonstrable
impact on illegal immigration. The problem of illegal immigration is serious and we
need to take reasonable steps to prevent and deter it. I have supported the in-
creased border patrols called for in Chairman Smith's immigration bill, H.R. 2202,
and improved worksite enforcement mechanisms that have been implemented by
the Immigration and Natviralization Service. However, I seriously doubt that denial
of birthright citizenship would influence most aliens, because most undocumental
immigrants come to this country because of economic opportunity and to escape op-
pression, not to determine the citizenship status of their offspring.
Federal appellate courts have upheld the refusal of the INS to stay the deporta-
tion of undocumented aliens solely on the basis that they have U.S.-citizen, minor
children, because this would grant an unfair advantage to these aliens over other
aliens who obeyed our immigration laws. There is no legal benefit for undocumented
parents to give birth to American children. I understand that in some border areas,
it is argued that mothers sometimes make efforts to give birth in this country in
order to provide an opportunity for their children. To the extent that this is a real
issue, it can be addressed in a much more measured fashion than the bills before
the committee — primarily through enhanced border enforcement.
Some of my colleagues have also alleged that some aliens want to have an Amer-
ican-born child for the purpose of eventually legally immigrating as an immediate
family member once the child reaches the age of majority. I taught immigration law
at Santa Clara State University and was an immigration attorney for a number of
years, but in all my experience, I have never encountered the situation in which a
mother planned a birth so that 21 years later her offspring could file a petition that
wovild be approved and numerous years later result in residence for the parent. I
seriously doubt that such a tactic could ever be widespread or should be the basis
for such a fundamental change in our Constitution.
Members of the Subcommittees, as a Representative from California, I am fully
aware of the burdens that illegal immigration can impose on local governments, the
40
States, and the Federal government. However, these proposals are extreme, uncon-
stitutional, and contrary to the traditions of our repuolic. I believe they would also
have almost no effect of the illegal immigration problem. I hope that we will aban-
don these efforts and look for real solutions to the problems that confront us.
Thank you for the opportunity to address you this morning.
Mr. Smith. Thank you, Ms. Lofgren.
Congressman Mark Foley.
STATEMENT OF HON. MARK FOLEY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Foley. Thank you very much, Mr. Chairman. I appreciate
your leadership on this issue, as well as Chairman Canady.
As Congress presses forward on the comprehensive immigration
reform, I believe it is of critical importance that we address one of
the major incentives encouraging illegal immigration to the United
States, the promise of birthright citizenship to anyone born on the
U.S. soil.
Before I begin my own testimony, I would like to share with you
a personal story about my own heritage. Like most Americans, I
am the proud descendent of immigrants. My grandmother was an
immigrant from Poland. She came to the United States through the
legal immigration process with a sponsor, a clean bill of health, and
a desire to find a job. My grandmother worked for years as a maid
in a local motel, supporting her family without any assistance from
our welfare system. She was proud to become an American citizen
as were thousands of immigrants who shared her hopes and
dreams.
Historically, the United States has been a country of immigrants
like my grandmother, who possessed a passionate respect for the
freedoms and liberties so many of us take for granted. America has
truly been the gateway to new opportunities, symbolizing individ-
ualism, independence, and entrepreneurship. However, this percep-
tion has been tarnished over the years by incentives promoting de-
pendency and big Government as a way of life. Today we see Gov-
ernment dependency undermining the very ideals our ancestors so
warmly embraced. The spiraling cost of immigration, particularly
illegal aliens, who have crossed our borders, has galvanized the de-
bate over the urgent need for immigration reform.
Americans believe the Federal Government has failed to secure
our borders. They question why their tax dollars are being spent
on illegal immigrants, when we can not afford to take care of our
own citizens first. Estimates by experts indicate undocumented
aliens residing in the United States is somewhere between $3 and
$4 million. This number has been growing by at least 300,000 a
year. The State of Florida, my home State, estimates that in 1993,
State and local governments spent $2.5 billion in public assistance
and services for immigrants. Over a third of those tax dollars were
used specifically to cover the costs incurred by illegal aliens.
One of the factors attracting illegal immigrants to the United
States is the automatic citizenship to any child born on American
soil. Under current citizenship requirements, children bom to un-
documented aliens become automatic citizens and are eligible for
Federal benefits, all paid for with our tax dollars. According to the
San Diego Union-Tribune article, an estimated 96,000 babies were
bom to undocumented women who were covered under California's
41
Medi-Cal, State Medicaid program in 1992 alone. The cost to Cali-
fornia taxpayers, more than $230 million in medical bills that year.
Some may suggest illegal immigration is only a problem for bor-
der States. While it is true that States like Florida, California, and
Texas generally have the highest number of illegal immigrants,
citizens of every State pay taxes to support Federal programs
which benefit those who have broken our laws and illegally entered
the United States. Illegal aliens receive Government benefits on be-
half of their children, such as aid to families with dependent chil-
dren [AFDC], food stamps, school nutritional programs, and health
services. The General Accounting Office estimates it cost taxpayers
$479 billion in 1992 for providing AFDC benefits alone to citizen
children of illegal immigrants.
Therefore, I have introduced the Citizen Clarification Amend-
ment of 1995, which would modify our citizenship requirements.
This bill would amend our Constitution, allowing a person born in
the United States to be granted citizenship only if at least one par-
ent is a lawful citizen, a lawful resident of the United States, or
has lawful status under the immigration laws of the United States
at the time of birth. In fact, most other countries have already lim-
ited their citizenship requirements, including England, France,
Australia, Germany, and Italy, just to name a few.
The 14th amendment reads, "All persons bom or naturalized in
the United States and subject to the jurisdiction thereof are citi-
zens of the United States." The fundamental purpose of this
amendment was to confer Federal citizenship on the newly freed
slaves following the Civil War so that they would be granted citi-
zenship and afforded the same civil rights as all Americans. During
the original debate over this amendment. Senator Howard Jacob
stated, "This will not, of course, include persons born in the United
States who are foreigners, aliens, who belong to the families of am-
bassadors or foreign ministers accredited to the Government of the
United States, but will include every other class of persons."
Clearly it was not the intent of Congress, the Framers of the
14th amendment to include illegal aliens within the parameters of
the citizenship clause. However the clause has been broadly inter-
preted to grant citizenship to anyone born on U.S. soil, even if the
parents have broken our laws and illegally entered this country.
While the Supreme Court has never considered the specific ques-
tion of the children of illegal immigrants, it has considered cases
on the broad issue of citizenship and the 14th amendment. One of
the cases most commonly cited in discussion on immigration is the
United States v. Wong Kim Ark in 1989. At issue in this case was
a man who was born in California to Chinese parents, who at the
time were not allowed to become naturalized citizens based on ra-
cial grounds.
Mr. Smith. Excuse me, Mark. Continue. That was just a 5-
minute warning. So if you can summarize it, that would be good.
Mr. Foley. Very quickly, the Supreme Court held the man was
indeed a citizen since he was bom in and subject to the jurisdiction
in the United States. In the majority view of the court, the United
States had accepted the English common law standard for citizen-
ship at birth when it chose to adopt the 14th Amendment. The
Court's opinion suggests that by adopting the concept into our Con-
42
stitution, the meaning of citizenship was protected by the authority
of the Constitution and could not be revised by an act of Congress.
It is interesting to note England ended its custom of granting birth-
right citizenship in 1983 after seven centuries of legal tradition.
The bottom line, folks, we think this is an important aspect to
look at. We believe it needs to be amended in the Constitution. We
believe we should go forward with the debate. I believe Congress
should urgently consider this amendment and clarifying amend-
ment to the Constitution and then move forward, giving the States
the right to also make that determination.
[The prepared statement of Mr. Foley follows:]
Prepared Statement of Hon. Mark Foley, a Representative in Congress From
THE State of Florida
I commend the leadership of Chairman Canady and Chairman Smith for holding
this joint hearing on the issue of birthright citizenship. As Congress presses forward
on comprehensive immigration reform, I believe it is of critical importance that we
address one of the major incentives encouraging illegal immigration to the United
States: the promise of birthright citizenship to anyone bom on U.S. soil.
Before I begin my testimony, let me share with you a personal story about my
own heritage. Like most Americans, I am the proud descendant of immigrants — my
grandmother was an immigrant from Poland. She came to the U.S. through the
legal immigration process with a sponsor, a clean bill of health and the desire to
find a job. My grandmother worked for years as a maid in a local motel, supporting
her family without any assistance from our welfare system. She was proud to be-
come an American citizen, as were thousands of immigrants who shared her hopes
and dreams.
Historically, the United States has been a country of immigrants like my grand-
mother who possess a passionate respect for the freedoms and liberties so many of
us take for granted each day. America has truly been the gateway to new opportuni-
ties, symbolizing individualism, independence and entrepreneurship. However, this
perception has been tarnished over the years by incentives promoting dependency
and big government as a way of life.
Today, we see government dependency undermining the very ideals our ancestors
so warmly embraced. The spiraling costs of immigration, particularly illegal aliens
who have crossed our borders, has galvanized the debate over the urgent need for
immigration reform. Americans believe the federal government has failed to secure
our borders and they question why their tax dollars are being spent on illegal immi-
grants when we cannot afford to take care of our own citizens first.
Experts estimate that the number of undocumented aliens residing in the United
States is somewhere between 3 and 4 million — and this nimiber has been growing
by at least 300,000 a year. The State of Florida estimated that in 1993, state and
local governments spent $2.5 billion in public assistance and service programs for
immigrants. Over a third of these tax dollars were used specifically to cover the
costs incurred by illegal aliens.
One of the factors attracting illegal immigrants to the U.S. is automatic citizen-
ship to any child born on American soil. Under current citizenship requirements,
children bom to undocumented aliens become automatic citizens and are eligible for
federal benefits — all paid for with oiu- tax dollars. According to a San Diego Union-
Tribune article, an estimated 96,000 babies were born to undocumented women who
were covered under California's Medi-Cal (state Medicaid program) program in 1992
alone. This cost California taxpayers more than $230 million in medical bills that
year.
Some may suggest illegal immigration is only a problem for border states. While
it is true liiat states such as Florida, California and Texas generally have the high-
est numbers of illegal immigrants, citizens of every state pay taxes to support fed-
eral programs which benefit those who have broken our laws and illegally entered
the U.S. Illegal aliens receive government benefits on behalf of their citizen chil-
dren, such as Aid to Families With Dependent Children (AFDC), Food Stamps,
school nutrition programs and health services. The General Accounting Office esti-
mated that it cost taxpayers $479 million in 1992 for providing AFDC benefits alone
to the citizen children of illegal immigrants.
Therefore, I have introduced the Citizenship Clarification Amendment of 1995,
which would modify our citizenship requirements. This bill would amend our Con-
43
stitution, allowing a person bom in the U.S. to be granted citizenship only if at least
one parent is a lawful citizen, a lawful resident of the United States, or has lawful
status under the immigration laws of the United States at the time of birth. In fact,
most other countries have already limited their citizenship requirements, including
England, France, Australia, Germany and Italy just to name a few.
The Fourteenth Amendment reads: "All persons bom or naturalized in th^ United
States, and subject to the jurisdiction thereof, are citizens of the United States. . ."
The fundamental purpose of this amendment was to confer Federal citizenship on
the newly freed saves following the Civil War so that they would be granted citizen-
ship and afforded the same civil rights as all Americans.
During the original debate over this Amendment, Senator Howard Jacob, stated:
"This will not, of course, include persons bom in the United States who are foreign-
ers, aliens, who belong to the families of ambassadors or foreign ministers accred-
ited to the government of the United States, but will include every other class of
persons."
Clearly, it was not the intent of Congress or the Framers of the Fourteenth
Amendment to include illegal aliens within the parameters of the citizenship clause.
However, the clause has been broadly interpreted to grant citizenship to anyone
bom on U.S. soil, even if the parents have broken our laws and illegally entered
this country.
While the Supreme Court has never considered the specific question of children
of illegal immigrants, it has considered cases on the broad issue of citizenship and
the Fourteenth Amendment. One of the cases most commonly cited in discussions
on immigration is the United States v. Wong Kim Ark in 1898. At issue in this case
was a man who was bom in California to Chinese parents, who at the time were
not allowed to become naturalized citizens based on racial grounds.
The Supreme Court held that the man was indeed a citizen since he was bom
in and "subject to the jurisdiction" of the United States. In the majority view of the
Court, the U.S. had accepted the English common law standard for citizenship at
birth when it chose to adopt the Foiuleenth Amendment. The Court's opinion sug-
gests that by adopting this concept into our Constitution, the meaning of citizenship
was protected by the authority of the Constitution and could not be revised by an
act of Congress. It is interesting to note England ended its custom of granting birth-
right citizenship in 1983 after seven centuries of legal tradition.
Our Founding Fathers and the Framers of this Amendment covild not have fore-
seen the current wave of illegal immigration we are experiencing today. During the
national debate over immigration reform, it is only appropriate that we clarify the
intent of our citizenship requirements to ensure they do not serve as a catalysis for
illegal immigration. The most effective and practical process is amending the Four-
teenth Amendment and avoiding the potential legal battles of statutory reforms.
There have been many proposals introduced in the 104th Congress to amend the
Constitution, and I am often asked why I believe it is appropriate or necessary to
modify our citizenship requirements by amending the most sacred document of om-
nation. We must amend the Constitution because the Fourteenth Amendment, in
and of itself, is very clear: "All persons born or naturalized in the United States,
and subject to the jmisdiction thereof, are citizens of the United States. . ." I be-
lieve The Citizenship Clarification Amendment will clarify the original intent of our
citizenship clause and restore integrity to the legal immigration process.
I would like to also bring to the Committee's attention another commonly asked
question about birthright citizenship, "Does this proposal unduly target children?"
On the contrary, this legislation places appropriate responsibility where it is due:
with the parents. Research in recent years indicates that immigrants come to Amer-
ica for better jobs, quality medical care and automatic citizenship to their children
bom in America. I sincerely believe my legislation will serve as a strong deterrent
for illegal immigration.
As Congress begins to consider needed reforms to our immigration system, the
time is right to address our nation's citizenship requirements. Confronting this im-
portant issue now is in the best interests not only of Americans, but also of immi-
grants who have come to the U.S. through our legal immigration process. Otherwise,
we will have failed to restore fairness and integrity to the legal immigration system
and will have preserved a major incentive to illegal immigration.
Thank you, Mr. Chairman, for allowing me the opportunity to testify on this issue
today. Before I conclude, I would also like to submit some additional attachments
with my testimony for the Subcommittees' review.
44
The Origins of the Fourteenth Amendment
The power to regulate immigration is an integral aspect of national sovereignty.
In losing control of its borders, the United States relinquishes a significant part of
its sovereignty. Today, the United States is unable to effectively exercise one of the
primary attributes of sovereignty — distinguishing citizens from non-citizens.
The Fourteenth Amendment brought the first meaning of citizen to the Constitu-
tion: "All persons bom or naturalized in the United States, and subject to the jiuis-
diction thereof, are citizens of the United States and of the State wherein they re-
side ..." Although the fundamental purpose of this clause was to secure citizen-
ship for newly fi-eed slaves after the Civil War, the amendment today is almost uni-
versallv understood to confer citizenship upon all persons born in the United States,
regardless of whether they are legally in the country or not.
The meaning of the Fourteenth Amendment, however, does not dictate the univer-
sal application. The subordinate clause of the amendment — "subject to the jurisdic-
tion thereof limits or qualifies the first phrase — ^"All persons bom or naturalized."
Thus, although there is no authoritative interpretation by the Supreme Court, the
amendment requires individuals to be both "bom or naturahzed" AND "subject to
the jvuisdiction."
Furthermore, legislative debates reveal the limits of this clause. Senator Jacob
Howard, the author of the clause, intended "foreigners," "aliens," and those bom to
"ambassadors of foreign ministers" to be outside the jurisdiction of the United
States. In addition, Senator Lyman Trumball, chairman of the Senate Judiciary
Committee and a powenRil supporter of the Fourteenth Amendment, stated that the
limit refers to those "not owing allegiance to anybody else."
Just government requires the unanimous consent of each and every individual
who is governed. Not only must the individual consent to being governed, but he
must also be accepted by the community as a whole. Granting citizenship to all per-
sons within the geographical boundaries of the United States is conferring citizen-
ship without the consent of "the whole people."
45
Which Countries Grant Birthright Citizenship?
COUNTRY
BIRTH*
' ' 1
NOTES
Algeria
No
Father most be Algcriaa or stateless
Aigeatiiu
Yc«
Aiutnlia
No
Children of immigrants bom in Ansttalia
arc dtizcrn |
Belgium
No
One parent must be a citizen of Belgium |
Bnzil
Yea
1
Otmcioon
Yea
1
Canada
Yea
Childrea bom to foreign parents after |
Febmary 1977 ire dtizens at birth |
Colombia
No
One parent muat be a legal resident ||
Czech Rtpublic
No
One parent must be a citizen of Czech Republic
Egypt
No
Father must be an E^plian dtizen
Fnncc
No
A child of Careign-bom parents must apply and be
approved for citizenship
Ocnaany
No
Tliose bom in Germany automatically acquire
the citizenship sutus of their mother
India
Yes
Isne!
No
If Jewish, a child is automatically a dtizen;
otherwise, must be the child of an Israeli
National to be a citizen
Italy
No
One parent most be Italian
Jamaica
Yea
Japan
No
One parent most be a dtizen of Japan
Kenya .
No
One parent most be a dtizen of Kenya
Kuwait
No
Father must be a dtizen of Kuwait
1 Mexico
Ycj
1 New Zealand
Yes
1 Nigeria
No
One parent most be a Nigerian citizen
j Norway
No
One parent most be Norwegian
1 Pakislan
Yes
1 Philippines
No
One parent must be a citizen of the Philippines
Center for Immigration Studies — September 1993
46
COUNTRY
BIRTH*
NOTES
Poland
No
One parent must be PoUth
Republic of Koiet
No
One parent must be a citizen of Korea
SiudJ Arabia
Ho
Father most be i citizen (child Is added on the
(atben passport)
Spain
Yes
However, the child needt one year of residence to
become a dtizea if the patents are foteignen
Swe4)ea
No
If mother it Swedish, the child acquires citizenship
at biilli; if pirenta are resident aliens, the
childicn acqairc the citizenship of their parents
Switzerland
No
If child was bom before Jane 1, 198S, the father
must be Swiss for the child to be a Swiss citizen;
if the child is bom after June 1, 198S, the child
will be a Swiss citizen if either parent is Swiss
Syria
No
One parent most be a citizen of Syria
Taiwan
No
One prcnt most be a citizen of Taiwan
TXirkcy
No
One |>arcnl most be a citizen of Tbrkey
United Kingdom
No
One prent most be a citizen or a legal resident of
the UK for the child to be a citizen
United States
Yes
Venezuela
Yes
Zaire
No
Mother must be a citizen of Zaire
•"Birth" refers only to wbeiber or oot a person it guiranleed dtircnsbip simply by being bom in that
country. However, exduded from ooosideration are ihe children of diplomats, or other persons on offldil
goveniineot basiness In a forelga country.
SOURCES:
Atpeclos Juridical e Instttudonalts dt las Migradonet ■ Colombia • 1991. InlernaUonal OrgaoizatioD for Migratioos,
Geneva, 1991.
Bin-Nun, Ariel. The Law of Iht Statt ofltraelAn Intmduaioit. Jerusiktn, Israel; Rubin Mass, 1990.
todividoal Country Embassies.
Israel Law of Return, 5710 - 1950, 4 LS.1. 1 14.
Jenks, Rosemary, ed. Immigration and Nationality Policies of Leading Migration Nations. Wathingtoo, DC Onier for
Immigration Studies, 1992.
Simpson, Senator Alan. •Immigration: The Problem. Goiding Principles, and Reform Proposals." Congressional Record. Vol. 139,
No. 114, Aug. 6. 1993.
Sarah A. Adams is an iniem at the Center for Immigration Studies.
Center for [mmigration Studies — September 1993
47
Mr. Smith, Thank you, Mr. Foley. I would like to encourage
members to stay here and hear Professor Jordan's testimony. Then
we will have plenty of time to get to this vote. We will recess for
the vote and then reconvene right afterwards.
Professor Jordan.
STATEMENT OF HON. BARBARA. JORDAN, PROFESSOR, JOHN-
SON SCHOOL OF PUBLIC AFFAIRS, UNIVERSITY OF TEXAS
AT AUSTIN, AND CHAIR, U.S. COMMISSION ON IMMIGRATION
REFORM
Ms. Jordan. Thank you, Mr. Chairman. Thank you for the
chance to come and testify on the issue that is before you today,
because it is an important one. The Commission on Immigration
Reform which I chair has not made any recommendation on the
bills before you. We have not taken a position about the 14th
amendment and its application to immigration. I would like to ask
that my written testimony be entered into the record, and just give
you my personal views first. I'll do that briefly now.
There are profound problems as I see it in the constitutional
amendments. Making the immigration status of the mother the key
to an American-bom child's citizenship, for example, that's one of
the amendments, would require the Federal Government to disown
its obligations to citizen children. Consider the case of a citizen fa-
ther married to a foreign mother. If the child is bom abroad, the
child is automatically made a U.S. citizen upon petition. If the
child is bom while the mother is in the United States, perhaps she
is overstaying a visa from Thanksgiving to Christmas, the father's
citizenship would not confer citizenship on the child. The father's
natural right to pass his citizenship to the child would be denied.
He would have to ask the Federal Government to bless that child
with citizenship.
It is not the practical problems which are really so profound
here, but the principle. There are three ways to become a citizen,
as you know: by choice, naturalization; blood, have American par-
ents; and birth in this country. There are some countries like Ger-
many, they have a very simple method. With very few exceptions,
you can only be German if your ancestors were German. There are
hundreds of thousands of second and third generations of people
bom in Germany who will never be German. Congress should think
again whether we want this country to be like Germany.
De Tocqueville, who said a lot of important things, made this
statement, "The government of a democracy brings the notion of
political rights to the level of the humblest citizens." Citizens, citi-
zens. That's a very beautiful word. It's an American word. With all
due respect to the Republicans here, the true conservative revolu-
tion happened in 1776, not in 1994. The Founders, you will recall,
had great protest against the English Parliament. They wanted to
assert their rights as Englishmen. The King and the crown denied
it. They fought a war, a revolution. As a consequence of that revo-
lution, we got this statement: All men are created equal, endowed
by their Creator with certain unalienable rights. The Government
doesn't give rights. We are born with them.
I would be the last person to say we're a perfect nation. But we
have a kind of perfection in us, Mr. Chairman, because of the uni-
48
versality that we have as a people. When the Declaration was writ-
ten and the Bill of Rights was added to it, they should have said
everybody was included in America, black, white, whatever your
ethnicity, whatever your race, whatever your background. They
didn't include women and they didn't include black people. But I'm
in there now because the 14th amendment put me there. These are
self-evident principles.
To deny birthright citizenship is to derail the engine of American
liberty. Progress in America is not an accident. Immigration drove
us down this track where we have such diversity yet such unity.
The 14th amendment says all persons born or naturalized in the
United States, subject to the jurisdiction here, are citizens of the
United States. Beautiful. That originally was in a statute, the 1866
civil rights law. But they knew that you must put things like that
in the Constitution. You cannot put it in a statute. If you put
things in the Constitution, they can't be changed easily. That is
what is before you now.
Let me say that in my other hat, as Chair of the Commission on
Immigration Reform, you have done a good job, Mr. Chairman, of
putting some of our recommendations in legislation and having
them considered by the body of the House of Representatives and
also the Senate, and hopefully to become law. You could get dis-
tracted by something as difficult as putting a triviality into the
Constitution of the United States. Don't do that. You've got too
many more important reforms that you can make to immigration
that would get us a long road down the road to reform.
There is no one who knows better than you and the members of
your committee how difficult it has been to get some of the things
in your bill that you got in there. For instance, worksite verifica-
tion. I understand there will probably be an amendment on the
floor to take that out. Don't let it happen. You know that you didn't
get there easily. It took long, arduous concentrated effort. Do not
be distracted from the real problems and real solutions by some-
thing as divisive as trying to rework the Constitution of the United
States and the 14th amendment.
People come to this country illegally because they want jobs.
That is why they come. They do not come to have babies. We have
had 3 years of consultations, testimony, all telling us what needs
to be done on the issue of immigration. But none of them said that
illegal immigration is a problem caused because people come across
our border to have children. You saw a member of our Commission,
Richard Estrada, last week. He said his view: don't let the United
States follow the Kuwait model, where citizens are the privileged
elite and the foreigners do the dirty work. That is not America.
The Commission has outlined an informed comprehensive meas-
ured strategy to deter illegal immigration. That is the way to ap-
proach the problem.
Mr. Chairman, I thank you for this opportunity. I ask that you
give an American response, not an emotional divisive response to
this problem of birthright citizenship. Thank you very much.
[The prepared statement of Ms. Jordan follows:]
49
Prepared Statement of Hon. Barbara Jordan, Professor, Johnson School of
Public Affairs, University of Texas at Austin, and Chair, U.S. Commission
ON Immigration Reform
Good morning, I am Barbara Jordan, and I am pleased to have this opportunity
to testify on such an important matter. I am here in a dual capacity. I was once
a member of the House Judiciary Committee, and I have studied the Constitution.
Presently, I teach political values and ethics at the LBJ School of the University
of Texas. I hope I can bring some education and experience to bear before you today.
I am also Chair of the bipartisan Commission on Immigration Reform. As you
know, our Commission has been deeply engaged in debate regarding our national
interest in sound immigration policy — in solving problems, completing unfinished
business, and avoiding fiiture error. We have made two reports to date, making rec-
ommendations for specific reforms to Congress. Our first report recommended a
comprehensive strategy for deterring illegal immigration. It is called U.S. Immigra-
tion Policy: Restoring Credibility, and I will have more to say about it in a moment.
Our second report is called Legal Immigration: Setting Priorities, which we pre-
sented to Congress this spring. We on this Commission have been gratified that our
work has helped this Subcommittee in preparing legislation to advance the national
interest in immigration policy. We are a Congressional commission, and it is our job
to serve you.
But this Commission has not made recommendations on the matter before you
today. As a bipartisan Congressional panel, we have not addressed the 14th Amend-
ment's application to immigration. But, personally I would hke to do so now — brief-
ly-
There are profound problems, as I see it, in the Constitutional amendments before
this Subcommittee. By making the immigration status of the mother the key to an
American-bom child's citizenship, for example, one of these amendments would re-
quire that the Federal government disown its obligations to citizen children. Con-
sider the case of a citizen father married to a foreign mother. If the child is bom
abroad, the child is automatically made a U.S. citizen upon petition. If the child is
bom while the mother is in the United States, perhaps by overstajdng a tourist visa
from Thanksgiving to Christmas, neither the father's citizenship nor the birth on
U.S. soil of an American child provides that child American citizenship. In fact, the
father's natural right to pass on his citizenship to the child is denied. He must ask
the government to bless his child.
But it is not the practical problems, profound as they are, on which I wish to
focus. It is the principle.
There are three ways to become an American — ^by choice, through naturalization;
by blood, through having an American parent; and by birth in the United States.
It is also true that most nations do not have these three methods. The simplest con-
trast is Germany. With very few exceptions, you can only be a German if your an-
cestors were German. There are hundreds of thousands of second and third genera-
tions of people, bom in Germany, knowing no other nation, who are not German,
who will never be German. Congress should think again whether you wish to make
the United States more like Germany.
De Tocqueville wrote of America that 'The government of a democracy brings the
notion of political rights to the level of the humblest citizens." And that is what we
are talking about: citizenship. It is a beautiful word. It is an American word. The
modem concept of citizenship is largely an American invention. It has Greek and
Roman roots, to be sure. But we grew in the soil of the United States the modem
concept of citizenship that so much of the world has adopted at last.
With all due respect to my Republican colleagues, the true "conservative revolu-
tion" happened in 1776. The Founders, you will recall, originally fought only to
claim as colonists their rights as Englishmen. It is when King and Parliament de-
nied those rights that they took the revolutionary step of asserting that these rights
were not granted to them, as subjects, from the Crown, but that "We hold these
Truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain unalienable rights." This idea — the American idea — is
that governments do not grant rights. We are bom with them.
I would be the last person to claim that our nation is perfect. But we have a kind
of perfection in us because our founding principle is universal: that we are all cre-
ated equal regardless of race, religion, or national ancestry. When the Declaration
of Independence was written, when the Constitution was adopted, when tiie Bill of
Rights was added to it, they all appUed almost exclusively to white men of Anglo-
Saxon descent who owned property on the East Coast. They did not apply to me.
I am female. I am black. But these self evident principles apply to me now as they
apply to everyone in this room.
50
To deny birthright citizenship would derail this engine of American liberty.
Progress in America is not an accident. It was immigration that drove us down the
tradt toward a broader and more truthful vision of ourselves. It was immigration
that taught us that, in this country, it does not matter where you came from, or
who your parents were. What counts is who you are. The 14th Amendment of the
Constitution says, in part: "All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and of the
State in which they reside."
This was originally a statute, the Civil Rights Act of 1866. Its authors knew that,
as a statute, it was vulnerable to being overturned by future lawmakers. That, they
determined, must not happen. We must not forget the history of the 14th Amend-
ment, or the context in wnich it was passed. We had fought a bloody civil war. And
now, three amendments to the Constitution were adopted — to end slavery; to pro-
vide equal protection of the laws; and to guarantee the right to vote.
I do not believe it is possible to amend the Constitution, or alter the meaning of
the words, by statute. In this case, any attempt would have significant negative con-
sequences. For example, H.R. 1363 would specify that certain children of illegal
aliens are "not subject to the jurisdiction of tne United States." Do we really want
to give these individuals immunity from Federal prosecution for criminal acts? I am
not sure how we could prosecute someone not subject to our jurisdiction.
So if the Congress wishes to deny citizenship to children of illegal aliens, it must
follow the intentionally arduous path of a Constitutional amendment. I hope that
you will not, take this step.
A constitutional amendment requires a supermajority vote in both the House and
the Senate, and the ratification of two-thirds of the state legislatures, presently 38
states. Even if — which I oppose — it was sound policy to so amend the Constitution,
it will take time. It will take resources. It will divide the country on the most pro-
found level — the question of who we are as a people, and who says so.
Let me go beyond my personal views here, to speak as the Chair of the U.S. Com-
mission on Immigration Reform. Do not let debate on birthright citizenship distract
you from the urgent business of controlling illegal immigration, which is essential
to the credibility of our commitment to the national interest in legal immigration.
Ably led by yoiir Subcommittee Chair Lamar Smith, and the ranking minority
member, John Bryant, you have an opportunity in this Congress to take significant
steps to deter illegal immigration and promote lawful immigration in the national
interest. You have labored m this Subcommittee to produce a bill, H.R. 2202, which
takes some of the prudent, measured steps recommended by this bipartisan Com-
mission, to do what needs to be done. The comprehensive strategy this commission
recommended last year to deter illegal immigration has seven parts: (1) Better bor-
der management; (2) development of a better system for worksite verification; (3)
benefits eligibility consistent with the goals of immigration policy; (4) deportation
of illegal ahens; (5) emergency management; (6) reliable data; and (7) attacking the
root causes of unlawful migration in the sending countries.
There is no one who knows better than those who serve on this Commission, how
hard it has been to advocate these tough choices. But we believe that they are nec-
essary, and through your actions as legislators, valuable progress in all of these
areas is within reach.
Please do not be distracted from these real measures to attack illegal immigration
through the Constitutional amendment process. There are far better ways to deal
with illegal immigration than to cut the Constitutional baby with a sword, and say,
this half is a citizen, and that half is not.
There will be those who will try to deny reality, when the whole House faces this
issue shortly. But the vast majority of illegal aliens do not come to America to bear
children, although it does happen. In three years and dozens of hearings, consulta-
tions and expert discussions, no one has ever reported to the Commission that the
vast majority of births to illegal aliens are anything more than a reflection of the
large numbers of illegal aliens who are here. The reason most illegal aliens come
to our country boils down to three words: They get jobs.
There will be a vote on the House floor on retaining the provision to test worksite
verification that the Judiciary Committee approved in H.R. 2202. There will be
those who claim that it is not worth testing the system you have endorsed. There
are also those who whisper in these hallways that illegal inunigration isn't so bad,
so long as they will work hard for low pay, so long as they do the dirty jobs that
Americans supposedly won't do, so long as their children aren't to become Ameri-
cans.
Caution. There are nations in the world that have tried this, and we are not like
them. We are not a nation that is permanently divided into "us", and "them". You
heard last week from my colleague on the Commission, Richard Estrada, who gave
51
as his views that the United States must not follow the Kuwait model, where citi-
zens are the privileged elite, and foreigners do the dirty work. I agree.
The Commission on Immigration Reform has outlined a comprehensive strategy
to deter illegal immigration — including the development and testing for a reliable
system for worksite verification that protects our civil Liberties.
I believe that treating us all alike is the appropriate way to attack iUegal immi-
gration, and I will be delighted to answer any questions.
Mr. Smith. Thank you, Professor Jordan. Let me say I may well
quote you on your kind words about the immigration reform legis-
lation that we are trying to move forward.
To my colleagues, I hope that the panelists can stay for ques-
tions. If not, we appreciate very much your being here. We will re-
cess until after this vote.
[Recess.]
Mr. Smith. The subcommittees will reconvene. We will finish up
with questions for the two remaining panelists who are here from
the first panel. After that, we will go immediately to our second
panel.
Let me say, although there are not very many Members here to
hear it, that the questions will be first by the chairmen of the com-
mittees, then the ranking minority members. After that, we will go
in the order in which members arrived, to try to be fair to those
members.
With that, let me ask a couple of questions. Then well go to Mr.
Serrano, and then to Mr. Canady.
First, Mr. Bilbray. I wanted to ask you about your feelings to-
ward the 14th amendment and whether you agree with some of the
other panelists that the 14th amendment gives an absolute right
to anyone who is born in the United States to become a citizen.
Mr. Bilbray. Well, Mr. Chairman, you have got to remember
that people refer to the British common law as their justification
that everyone born on the soil is automatically a citizen. But if you
go back to the Calvin case, it conditioned that citizenship based on
being obedient to the jurisdiction and the sovereignty of the crown,
which would then be turned around, and saying look, if you are in
the realm, you are there under the authority and with the permis-
sion of the crown or of the country. British common law contains
a conditioning clause that everybody who attacks my legislation
keeps referring to. It says that you must be obedient to the crown
to be able to claim to be a citizen. If you want the rights, you must
assume the responsibility.
If my opponents' definition was so true, then why don't the chil-
dren of diplomats have automatic citizenship? If it was so absolute,
I challenge them. If it is so absolute, why don't the children of dip-
lomats have automatic citizenship? The fact is, they don't because
British common law that they keep referring to is not absolute in
itself I think that just because we have had this misperception for
all these years, does not make it right. We need to go back to that
basic concept that what is right is right. We need to move from
there.
Mr. Smith. Thank you, Mr. Bilbray.
Mr. Gutierrez, let me see if this is fair to say. There aren't very
many things that everybody is going to agree on today, but perhaps
one is that when the 14th amendment was passed, there was no
intent at that point that it be applied strictly or inclusively to chil-
52
dren of individuals who are in the country illegally, simply because
that class of individuals did not exist.
Let me summarize, as I understand it, the three reasons why
most people feel or many people feel that if we are going to change
the 14th amendment in one way or the other, by statute or by con-
stitutional amendment, that it should be changed. The first point
made by a number of people is that as it now stands, it is a reward
for entering this country in violation of our laws and that that is
patently unfair. It is unfair to those who are currently citizens. It
is also unfair to the millions of people, legal immigrants, who are
waiting to come to our country.
The second point generally made is that the cases end up re-
warding parents economically as well for being here illegally, be-
cause they will benefit at least indirectly by the benefits going to
the children.
The third point is that illegal immigrant parents are further re-
warded because t3T)ically, if they have a citizen child, they are not
going to be deported. So that that protection is another benefit that
they enjoy, but to which they may or may not be entitled.
I would just like to ask you to respond to those three main points
as to why the 14th amendment should be changed.
Mr. Gutierrez. It seems to me that No. 1, you can not condition
or attempt to condition or affect the conduct of adults through £in
action upon a child, an infant child, someone who is just bom, be-
cause that child is not responsible for the actions of the parent. I
think that is basically what you do. So I don't think you achieve
a goal of limiting undocumented people from coming into the coun-
try because of that, because one does not — and I think it's fun-
damentally unfair and I think constitutionally, I think one could
argue that our courts have already stated that an illegitimate child
has the same rights as a child that is bom out of parents that are
married, and that you can not treat them differently.
Second, I think it's a mis — people don't come here to this country
to have babies. People come to this country in search of greater and
better economic opportunities. So it would seem to me if you really
want to address the issue of undocumented workers coming to this
country, that what you would do is enhance the economic opportu-
nities, the standard of living in the countries of origin of those un-
documented people. Why do I say that? Because that is why people
come here historically. If the conditions are good or better in the
country of origin and are improving there, there is a less of a likeli-
hood of people coming here illegally.
Mr. Smith. One more quick question. I think that's true. You
have the push pull factors. You have the push factors from other
countries. You have the pull factors in the United States. The two
magnets that are drawing individuals or attracting individuals to
the United States are the availability of jobs and the access to Fed-
eral benefits. Would you be in favor of trying to reduce the attrac-
tion of those two magnets in order to reduce the number of individ-
uals who would be seeking to come to the country?
Mr. Gutierrez. I would think that it would be more beneficial
if we were to improve the working conditions in the country of ori-
gin of the people. I would certainly consider — number one, I don't
believe today that people that are here illegally or undocumented
53
receive those benefits. It has been my history in my congressional
district that number one, people are deported fi-om the United
States of America, even though they do have children that are citi-
zens of this country, bom in this country. So it has been my experi-
ence. I don't know if it's the experience across the country.
I can only tell you if you were to call to testify the Immigration
and Naturalization Service regional office in the city of Chicago,
they could give you an unlimited number of cases in which adults
with children which are U.S. citizens have been deported from the
country.
Mr. Smith. Thank you. I have less than a minute to go. Mr.
Bilbray, I just wanted to ask you in your experience in California,
do you feel that individuals are enticed to come to our country ille-
gally because of the promise of the easy availability of benefits and
the easy access to jobs?
Mr. Bilbray. Mr. Chairman, thank you very much for asking me
that question. As a county supervisor for 10 years in the county of
San Diego, with 2.7 million people, who operate this health care
system in that region, that anyone who wants to come to the emer-
gency rooms and the hospitals of San Diego and see what we see
going firsthand, see what we see in the parking lot waiting for a
young lady to dilate, just so she can deliver her baby in a U.S. hos-
pital. The fact is, that is a situation that exists in my communities.
Now I'm not going to argue about anybody else. But if anybody
wants to come to San Diego and try to argue that this is not an
attraction, then I would ask them to look at the documents that we
have from Mexico that advises women on how to cross the border,
how to get into the United States, and how to present themselves
for delivery for an American child, and then to be able to access
the welfare system because they then are parents of a U.S. citizen,
I don't think we should blame this though on the illegals. I think
we need to blame this on the fact that we have created this prob-
lem. They haven't. They have only taken advantage of a situation
which we have created for ourselves.
Mr. Smith. Thank you. Let me jdeld to the ranking minority
member of the Immigration Subcommittee, my colleague from
Texas, Mr. Bryant, for 5 minutes.
Mr. Bryant of Texas. Thank you, Mr. Chairman, I want to say
up front I think these proposals are wrong, and that the way to
deal with this problem is to stop illegal immigration, which is ex-
actly what the bill we are bringing to the floor here in the next sev-
eral months is aimed at doing.
Second, I think that the ease with which people nowadays pro-
pose amendments to the basic document, this governing document
of this country, the Constitution, is alarming.
I'd like to ask with regard to Mr. Bilbray's proposed statute, and
I think one of the other constitutional amendments as well, let's
talk about Mr. Bilbray's statute. How can it be fair or legal to say
that a mother has the capacity to convey citizenship to her child
but a father can't?
Mr. Bilbray. The fact, first of all, the fact is that the mother is
who is delivering, basically presenting herself for delivery. It tends
to be the nexus to be able to identify. I think we still, contrary to
what Ms. Jordan said, is that the fact of other legislation pertain-
54
ing to citizenship, such as the father being an American citizen,
we're not affecting that right. If the father is a United States citi-
zen under other law that we have passed as a Member of Congress,
that still applies. All we are saying though is just by her being
present on U.S. soil is not an absolute. That we still have the con-
dition that she has to respect the sovereignty of the United States,
and under the obedience of the United States as stated by the con-
stitutional amendment and stated by British common law.
Mr. Bryant of Texas. Well, I am clear on what your proposal is,
it just seems to me that you can't have a situation in which a
mother can convey citizenship but the father can't. It would still
have to be consistent with the equal protection clause of the Con-
stitution. In addition to the problem that I think the statute has
with the fact that the Constitution already describes how citizen-
ship is to be conveyed.
Mr. BiLBRAY. Congressman, if a father can convey citizenship
based on other statute, this statute would not affect it at all. It ob-
viously would apply. All it comes down to again, is that the moth-
er's status under the jurisdiction on the obedience of the Federal
jurisdiction is a condition of the 14th amendment. That condition
is just as powerful as the condition that says if you are bom here.
Mr. Bryant of Texas. It seems clear though, just from the fact
that we are having the discussion, that this is going to lead to an
enormous amount of litigation. I mean this is going to be up and
down through the courts for years every time one of these things
is contested. Why not just deal with this by stopping illegal immi-
gration so you don't have the problem?
Mr. BiLBRAY. Well, first of all, let me point out that the reference
in my bill does have a reference to parents. What is happening in
San Diego and still can happen is that people can get a temporary
status to come to work. That status then is used to be able to come
in and deliver for birth. Then the claim all at once is a vested right.
Those individuals who are claiming that right are not under the
authority, are not treated the same as resident aliens and citizens.
I want to clarify that.
Unlike other proposals, and as being a child of a resident alien,
I really believe strongly in fact that those resident aliens who have
gone through the rules, who are under the jurisdiction, their chil-
dren should have the same rights. This clause under the jurisdic-
tion applies to them. They serve jury duty, they pay their taxes.
They do everything like a U.S. citizen. They can be drafted, even
if they are not a citizen.
Mr. Bryant of Texas. Why couldn't you just say that people with
temporary status can't be granted temporary status if they are ob-
viously in the third month of being pregnant or something like
that?
Mr. BiLBRAY. No. Wait a second. You have got to understand. In
San Diego, they can have a temporary visitor's card just to come
shop. We allow this constantly. The majority of crossings across the
Mexican border, Tijuana, the largest port of entry in the world, is
basically people that are on one day access in and out. During that
time, they then take advantage of the opportunity and use that op-
portunity as a way to leapfrog over the system, while you have
other people that want to immigrate legally waiting patiently in Ti-
55
juana for the proper papers to be able to enter and gain resident
status.
Mr. Bryant of Texas. But I would think you could find some way
to screen the people that you are granting those cards to, that vir-
tually anything would be preferable to amending the U.S. Constitu-
tion.
I know you think your statute does it without that. But I don't
see how it can possibly work without an amendment to the Con-
stitution.
Mr. BiLBRAY. Well my point again though is the fact that you say
that based on an assumption that the Supreme Court has ruled on
this. What I am telling you, Congressman, the Supreme Court has
never ruled on this. They have never ruled on a child of an illegal
alien.
The Wong Kim Ark that is referred to all the time was legal resi-
dents who had chosen to come into the country by the United
States, let them in. In fact, the reference to Senator Howard, the
author of the 14th amendment, said quite clearly that what he
wanted citizenship to was the people who we've chosen to be on our
soil. In fact, he even referred to the slaves as being forced to come
here. Because we chose for them to be on our soil, we owe their
children automatic citizenship. That applies to Wong Kim Ark, but
it does not -apply to illegal aliens. That is the difference.
Mr. Bryant of Texas. We chose to let an awful lot of them come
in here to work cheap on the farms in southern California. In fact,
we had much of them in front of this committee here just a few
days ago, hoping to do more of that.
Do you think their children ought to be able to be citizens if they
are over here working cheap?
Mr. BiLBRAY. My legislation would not affect those who are al-
ready on U.S. soil. I'm sure there are those who will argue that
through our lack of attention to immigration, that we have de facto
through cur negligence consented for them to be on our soil. That
argument can be used for existing children of illegal aliens residing
in the U.S. I think we all agree that from this time forward. Con-
gress is no longer going to be negligent smd no longer is going to
de facto consent to them being on the U.S. soil. The fact is, our im-
migration law should reflect that change and reflect the fact that
anyone on U.S. soil without our consent is not going to be rewarded
for violating the law while we ask those who are trying to live by
the law to wait. We are punishing people for doing the right thing,
and rewarding the parents, not the children.
Mr. Bryant of Texas. I know how good it sounds. I just think
we've got to be cognizant of the fact that you are going to have liti-
gation in every one of these cases. The best way to deal with this
is to stop people from coming here illegally.
Mr. Gallegly. Would the gentleman yield?
Mr. Bryant of Texas. Sure.
Mr. Gallegly. You asked Mr. Bilbray about farm workers or
whatever. The legislation that I introduced some 5 years ago and
have worked on, merely states that the mother must show proof of
having a legal basis for being in the United States. I would assume
by the nature of that, if they are legally here working in a pro-
56
gram, if they are on a visa or whatever, that would qualify so that
they would not be exempt from the automatic citizenship.
Mr. BiLBRAY. Mr. Chairman, I think there needs to be a clarifica-
tion for those who are not exposed to this situation. But there is
a quite clear line in our justice system between those who are legal
residents and those who are citizens and those who are legal aliens
and tourist aliens.
When you get tried for a misdemeanor in San Diego, if you hap-
pen to be a tourist or an illegal alien, the first opt of the justice
system is to deport you rather than prosecute you. Where if you are
a resident alien or a citizen, you are prosecuted. Now unless you
recognize that as being a unique separation by constitutional ques-
tions, you could have a situation where a resident alien or a citizen
could sue for the violation of their constitutional rights under equal
protection under the law. The reason why you don't see that is that
the Constitution and the law specifically separates those two.
All we are saying is that the 14th amendment recognizes that
separation. It does not violate equal protection. Thus, we should
make that consistent.
Mr. Smith. Thank you, Mr. Bryant. Mr. Gallegly is recognized for
5 minutes.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Mr. Gutierrez, you mention in your opening comments that you,
speaking on behalf of the Hispanic Caucus, opposed, and you men-
tioned the legislation of I believe three Members, Mr. Bilbray, my-
self, and I believe one other, I didn't write it down. But if my mem-
ory serves me correctly, those are all Republican Members. Was the
exception of Mr. Beilenson's amendment, which has been on record
for a long time, for partisan reasons or do you embrace his?
Mr. Gutierrez. No. I do not embrace Mr. Beilenson's arguments
either, Mr. Gallegly. I stand corrected. I hope the record would
show and amend my opening statement to reflect Mr. Beilenson's
also.
Mr. Gallegly. OK. I have a brochure that is coming over from
my office that I would like to share with some of you. There has
been a lot of comments about the fact that women do not come into
the United States purely for the purpose of getting the birthright
citizenship for their child and all of the benefits derived. We have
statements on record in Los Angeles and San Diego County where
the women have volunteered that their principle purpose of coming
to the United States, clearly a third of them that are in the country
illegally, have stated that they are here principally for the purpose
of that citizenship. In the case of California, they receive $670 a
month for AFDC, public housing and so on and so forth.
This brochure that I am going to present, that I would like to be
made a part of the record, has been printed by the — I believe it's
the county of Riverside, it's either Riverside or San Bernardino
County, in both Spanish and in English, and it's circulated all
throughout Mexico. It is a bulletin advising women you do not have
to be an American citizen. In fact, even if you are illegally in the
country, you are entitled to all these benefits. And in fact, it is a
violation of the law for someone to turn you in as being illegal. So
if you do say that you are in the country illegally, they can't do
anything with you, and advise folks accordingly.
57
Don't you believe that that is an incentive for people to illegally
come to the country?
Mr. Gutierrez. It has not been my experience. Nor do I believe
that people sit on one side of the border, sit down, make love, pro-
create, wait 8 months and I don't know how many days, and then
decide to skip over the border to have. I mean, I know that people
come to this country in that fashion. The other thing I think is that
the last time I checked, the vast majority of people who were in
this country undocumented do not come through the border. That
even if you were to eliminate all access, because there is always a
lot of focus on the border between Mexico and the United States.
Sometimes, it makes people such as myself with a name like
Gutierrez, a little wary when everybody focuses on the Latin Amer-
ican issue of immigration to this country, when we know that in-
deed if you stopped that, the majority of people who are here un-
documented in this country would still be here.
So I don't believe that that happens. People come here to work
hard, to sweat, and to toil and to contribute. The other thing, Mr.
Gallegly, is that it has been my experience that having a child bom
an American citizen of an undocumented person does not guaran-
tee that that person is not going to be deported from the United
States of America. There is absolutely no guarantee. As a matter
of fact, it doesn't exclude them from deportation. Maybe I am
wrong, and maybe they are just violating the law, and I'll call up
my INS office in Chicago and say, "Stop deporting the parents of
undocumented workers who have children bom in the United
States of America." It is just not happening.
The other thing is, how do they access the benefits when indeed
they can be deported and they can be denied benefits, because they
have no statutory, how would I say, guarantee to any of those ben-
efits. They are disallowed.
Mr. Gallegly. Mr. Gutierrez, I only have about a minute left.
For the record, Mr. Chairman, I would like to ask that the commit-
tee with unanimous consent allow these two pamphlets, both in
Spanish and in English be made a part of the hearing.
Mr. Smith. Without objection
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62
Mr. Gallegly. I would also like to ask Mr. Gutierrez just one
final question. All of the numbers that we have, and of course Cali-
fornia I think is impacted more significantly maybe than other
States, largely due to the fact that our welfare benefits, AFDC is
significantly more than most other States. I think the difference in
California and Texas, for instance, and maybe the gentleman from
Texas, our chairman, could correct me. But it is my understanding
that in Texas AFDC is like $230 or $240 dollars a month, where
in California it's $670.
But in California, according to all of the statistics and numbers
that we have for the last 5 years, over two-thirds, over two-thirds
of all of the births in Los -Ajigeles County operated hospitals, the
indigent hospitals fully funded by taxpayers, the mother openly ad-
mits that she's in the country illegally. In fact, in the last 2 years,
the county hospitals can not provide enough service. They are hav-
ing to subcontract out to private hospitals. Statewide, the Medi-Cal
hospitals, statewide over 40 percent of all the births in the largest
State in the Nation, the mother is in the country illegally. The
overwhelming majority of those do take public benefits. You have
to acknowledge that is a tremendous incentive.
Mr. Gutierrez. Mr. Gallegly, it is very difficult for me to re-
spond to the issue of California, as I do not know it as well as I
treat the issue of immigration. I can only tell you that in each jand
every instance in which I have confronted the issue, I find people
who come undocumented from — in Chicago it's from Poland. I as-
sure you that it's from Mexico. It's from Europe. I invite everyone
to come to my district and see the people that come. They come to
my office all of the time, Mr. Gallegly, saying here is our problem.
But I find that they are all working. They are all working. They
all have jobs.- They all contribute.
So if we were to make an analysis like the undocumented person
who lives in the Fourth Congressional District or probably out in
California probably has a job, pays Social Security, pays income
taxes. State, pays Federal taxes, but does not have the same right
to the benefits that should be derived by payment of those taxes.
So it is almost as if they are here, they are living under welfare,
they don't work and they don't contribute, but they do.
Mr. Gallegly. The only question, and I know I'm about out of
time. But the question, Mr. Gutierrez, if in fact they are working
and they can provide for themselves, they would not qualify for in-
digent health care. So based on that, how do you explain over two-
thirds of all the births are illegals that are indigent, and on the
statewide basis, people that qualify for these programs are not
working, or either they are lying about their income and getting
the Federal benefits, because they show that they are not qualified
by having enough income to provide for themselves.
Mr. Smith. We're going to need to move on. Thank you, Mr.
Gallegly. Perhaps you can take that up on the next question.
Mr. Serrano.
Mr. Serrano. Thank you, Mr. Chairman. Let's first of all under-
stand what I always try to explain at the beginning of my com-
ments whenever we have this kind of a conversation. This issue is
part of the misguided immigrant bashing that is taking place in
this country. A lot of well-intentioned people who really want to
63
deal with immigration, which they perceive to be a major problem,
when in fact it isn't, think that by making English the official lan-
guage or stopping all immigration or beginning this new conversa-
tion, we will somehow deal with this issue.
The fact of life is that this is also directed at the perception that
there is a large number of Hispanics arriving in the country. This
is not about people coming from Europe. I will argue that to my
last day in Congress and maybe to my last day here on earth. If
everyone in this country were coming from Europe right now, we
would not be having these discussions right now. We're concerned
about language and the browning of America.
Now, it's interesting that some articles have been written in New
York papers that indicate that if we really study New York City's
undocumented population, you find Ireland and Italy higher up on
the list than the Dominican Republic and Colombia. But no one is
discussing that. They are discussing bilingual education in the
schools as an issue.
It is also ironic that we discuss this issue when the country was
founded by illegal aliens who had no right to be here, just showed
up at Pl5miouth Rock and at other places, in Augustine, FL. And
then there are parts of the country, the Southwest and West; those
lands were taken by us from Mexico. So there are two ironic points
that we have to deal with on this issue.
But of all the discussions we have had, this is the one that trou-
bles me the most, because I believe that citizenship is too serious
an issue for us to lightly tinker with. I personally have some very
serious problems with the issue of tinkering with anyone's citizen-
ship. We have traditionally said, "If you are born here, our Con-
stitution says you are an American citizen." Now we're going to
say, "However, because we have this concern about who is arriving
in this country, we are going to stop you at the pass, cut you off
at the pass. We're going to say if you are born here from undocu-
mented parents, you are not a citizen." That opens up a whole new
situation which is very difficult for us to deal with.
Now here's my concern. How the heck do you enforce this? Lin-
coln Hospital in the South Bronx has more births than anywhere
in New York City. "Dr. Smith, this one looks dark. Check him out."
'Tes. But his mother is speaking English. He doesn't speak Span-
ish." "Well, where is she coming from? From a British Colony?"
Who makes that determination? "This one is light-skinned. He's
probably ok, he's probably a citizen." Boy, are Puerto Ricans going
to be in trouble, because we come in all colors, and citizenship is
not the issue.
Who makes that determination? Is it the nurse? The doctor? Will
the social worker now in charge of not allowing a baby out of the
hospital without proper documents be denying documents? How far
do we carry it? Does the hospital want to get into that situation
or does the hospital deny a woman in labor admission for the birth
because we can't determine who the child is?
I always tell you that this is also unfair to certain citizens in this
country. I assure you that if Mr. Gutierrez and his wife show up
in the Bronx or I show up and sign up with my last name, they
are going to start asking me questions and not asking someone else
questions about whether that baby is going to be a citizen or not.
64
So you see, enforcement makes no sense. But the style in Congress
now is, "Let the States decide. Let the States determine what will
constitute prayer and desecration of the flag and what constitutes
a citizen."
My friends, this one is serious. This one is too serious for us to
fool around with.
And let me give you my personal concern, which is self-serving,
I admit, but serious. Mr. Gutierrez, where were you bom?
Mr. Gutierrez. I was bom in Chicago.
Mr. Serrano. I was bom in Puerto Rico. Yet you and I, because
of the unique relationship between the United States and Puerto
Rico find ourselves not only American citizens and proud of it, but
very much part of the so-called Puerto Rican community through-
out the Nation, and we keep very close ties to the island. Am I cor-
rect?
Mr. Gutierrez. Yes, sir.
Mr. Serrano. My citizenship is not protected like yours in the
Constitution. My citizenship comes about, it is my opinion — and
you're the expert on this, that's why you are sitting there, testify-
ing on behalf of the caucus — my citizenship comes about because
of the Jones Act in 1917, which declared all Puerto Ricans citizens.
Interestingly enough, the House of Delegates left over from Spain
voted unanimously to reject the citizenship. Congress came back
and said "Well, we have a war going on and it's embarrassing to
send you without your being citizens." At any given moment, if we
opened this subject up — don't take this lightly — someone could de-
cide that citizenship conferred by law and not by the Constitution
can be revoked. Now I know some of you would love me to leave
Congress but most of you wouldn't. What happens when we begin
to open up this subject? So I would hope that we don't take this
lightly. This is a serious, serious issue.
Mr. Gutierrez. Of course, if they revoked your citizen under the
statute in 1917 Jones Act, they would revoke my parent's citizen-
ship. Therefore, I guess I would not be under the law here when
I was bom in 1953 because if they revoke yours, they revoke my
parents. I don't know what happens to my standing, because I
therefore was not bom of citizens of the United States of America.
Mr. Bilbray. Mr. Chairman, the Wojig Kim Ark case clearly says
that at the time of birth, if you are under the jurisdiction you can't
take it away after the time of birth.
Mr. Serrano. No, but you see, Mr. Bilbray, my question for you
is, does your legislation, or any of the other legislation here, in
your opinion — this is an easy answer for you, but I just want you
on the record — in your opinion, open up the discussion of citizen-
ship where it is not protected by the Constitution? Since we're
going to see so much litigation under these bills that we're going
to go crazy in the course of discussing citizenship, can not the
Jones Act become part of the litigation? The question has to be
asked.
Mr. Bilbray. Mr. Congressman, my bill does not affect any other
citizenship legislation. I just ask you, is that you have the assump-
tion that everyone bom on U.S. soil are U.S. citizens and that any-
body who would say otherwise is prejudiced. Let me point out, the
children of diplomats do not qualify for automatic citizenship. That
65
condition in my opinion does not reflect prejudice. It reflects the
Constitution of the United States and the conditioning clause of the
automatic citizenship.
Mr. Serrano. That reflects an understanding that you are here
in a certain situation. What we are talking about is people who
make a decision in their life — granted, our problem here is that
rather than dealing with undocumented immigration at the source
or at the border, we're always dealing with the issue at the end.
People make a decision to leave their home and come to this coun-
try. Then later on, they give birth to someone. You are now ques-
tioning that citizenship. That is a very serious issue. It is unlike
a person coming here as a diplomat for a temporary stay.
Mr. BiLBRAY. I know that you agree though that a diplomat's
child is not given automatic citizenship.
Mr. Smith. Mr. Bilbray, let me push on. The Chair has now ex-
tended to the gentleman twice the normal amount of time. I would
like to move on to get everybody.
Mr. Serrano. I was going to ask one more question of Mr.
Bilbray.
Mr. Smith. Mr. Serrano.
Mr. Serrano. Mr. Bilbray, you said that you were born of un-
documented parents?
Mr. Bilbray. No. My mother was an immigrant from Australia.
Mr. Serrano. And was not a citizen?
Mr. Bilbray. She got her citizenship. In fact, she was the first
war bride to get her citizenship after World War II.
Mr. Serrano. But she was not a citizen when you were bom?
Mr. Bilbray. My mother was taken off of the military base until
she got her citizenship, and just before my brother was bom, she
was removed because she was not a citizen. She was a resident
alien, and she was removed from the naval reservation until she
got her citizenship just before my older brother's birth so my broth-
ers and I could be bom at North Allen Naval Air Station because
she had received her citizenship.
Mr. Serrano. After you were born?
Mr. Bilbray. No. She got it just before my older brother was
bom.
Mr. Smith. Thank you, Mr. Serrano. Mr. Bono.
Mr. Bono. Thank you. You know, I've been sitting on these pan-
els now for a long time. What is unfortunate is that these don't be-
come practical issues, and they are practical problems. They be-
come emotional issues. My father was an immigrant. I'm Italian.
You mentioned Italians. I think we're the most benevolent country
in the world. Let me ask you something, Mr. Bilbray, being close
to Mexico. How loose are the immigration rules in Mexico? Are
they as open-minded about regulations as we are in the United
States?
Mr. Bilbray. Mr. Bono, as somebody who has not only lived on
the border but worked with Mexican officials for over 20 years, let
me just tell you. Mexican immigration law is so much more reason-
able, logical and fair than our system is right now, that anyone
who wants to point at Mexico and somehow put them down for
their immigration law really needs to take a second look. I do not
believe Mexico as a nation or the people of Mexico or Latin Amer-
66
ican bear the responsibility here. I think they have set an example
in many cases that we could learn from.
Mr. Bono. Good. Why would you not consider your legislation
punitive against innocent children?
Mr. BiLBRAY. Well, Mr. Bono, I think that we have got to point
out that I don't believe that the condition that does not give auto-
matic citizenship to the children of diplomats as being punitive or
prejudiced against the children of diplomats. All we are saying
though is that we are not going to reward people for violating the
sovereignty of the United States and we're not going to automati-
cally give something to someone that is breaking the rules, while
we punish people de facto by not giving citizenship to those who
are waiting patiently. It really comes down not just to British com-
mon law, but to common sense. You do not stop people who are
playing by the rules and deny them something that you are going
to reward somebody with for violating. It is the parents and the
status of the parents that we really need to determine. Common
sense and common decency says you do not punish people for doing
the right thing and reward people for doing the wrong thing.
Mr. Bono. I don't see how we can ever resolve issues when the
position becomes one of a certain group of people addressing it be-
cause it is a practical problem. Then the other group that considers
themselves victims of these people who consider themselves having
a practical problem and emotional problem to discriminate against
people. I just don't believe that in America. Maybe I am extremely
naive. But I find it difficult to think that. I don't think this issue
would be discussed if it weren't a practical problem that existed in
this country, or at least in Los Aiigeles or California. Would you
agree?
Mr. BiLBRAY. Let me just say I agree to the fact that if people
will look at the true problem, quit trying to make it an issue of
prejudice back and forth. Look at the logic. As somebody who lives
in a working class neighborhood, who has provided service to the
working class, I find it really hard for us to look at something like
the allocation of Medicare funds for the needy and the poor of this
country and see the great statements that are going around about
how we are going to provide these services to our citizens, and at
the same time, ignore the fact that 40 percent of the Medicaid
births in California are to people that are not even supposed to be
in the country. And we're at this point to where we are drawing
this line.
It is easy, frankly. I'll be very blunt. It is easy for the rich and
powerful to talk academic about these issues. But if you are needy,
if you are somebody of color, you are somebody in a community
that needs these services, if your hospital is the one that is being
impacted, because it's not impacting the rich neighborhoods, it is
the poor neighborhoods. If your neighborhoods are being impacted,
you are the ones that are going to have to stand up and talk about
it. I happen to be somebody who not only lives in those neighbor-
hoods, but actually represent those neighborhoods. I think a lot of
people feel that if this were happening to the rich neighborhoods,
there would be hell to be paid. There would be more done on this
thing. I think it is only fair and equitable that we talk about the
appropriate way to apply these laws.
67
Mr. Bono. Thank you. I just want to make one closing state-
ment, if I may, Mr. Chairman. I am not a person who discrimi-
nates. I don't consider myself mean. I don't want to hurt anyone.
But there are problems that I wish we would all address and all
recognize that these problems do exist, and everybody would con-
tribute to these problems rather than just saying you're a mean
guy and you want to discriminate against me because I am a cer-
tain nationality. I think that is being a victim.
By the way, I work for cheap wages. Somebody mentioned cheap
wages like it was a dirty word. I worked for cheap wages for a long
period of my life. I worked through those cheap wages and achieved
more. But I had the opportunity to do that. So it's an insult to ev-
erybody to work for a few bucks, the amount of bucks that could
be afforded to pay you, I don't consider that an insult. Again, I just
want to say I wish we would all recognize these are problems that
have evolved throughout history of our country now, and they have
changed since the Constitution. They do need alterations. To as-
sume that everjrthing will stay the same is a false point of view
and totally unacceptable in the real world. Thank you, Mr. Chair-
man.
Mr. Smith. Thank you, Mr. Bono. As I mentioned earlier, we are
going to take members in the order in which they arrived when we
began the hearing today. That means that Mr. Becerra will be up
next, Mr. Bryant, and then Mr. Watt, as things now stand.
Mr. Becerra is recognized for 5 minutes.
Mr. Becerra. Thank you, Mr. Chairman. Before I ask any ques-
tions, and I hope we get to questions, I am fascinated that several
members mentioned that polls, opinion polls taken in their districts
or in their States have shown that the public by some overwhelm-
ing majority would like to do certain things, whether it's restrict
citizenship status for children bom in this country or otherwise,
whether it's — in some cases proposition 187 was shown in the polls
to be dramatically supported by the public. I never realized that
coming to Congress that I was obligated now as a Member of Con-
gress to follow the dictates of a poll. I suspect if we were to do that,
last year we'd have a President by the name of Robert Dole, and
this year we would have a President by the name of Bill Clinton.
It seems to me as well, that if we were to look only at polls, it
could very well be that African-Americans would only barely be
finding that they have the franchise to vote. When you take a look
at the Dred Scott decisions, the Supreme Court of the United
States somehow found a way to tell a very large percentage of the
population in this country, one that had worked very, very hard,
and in many cases against its will, that it could still not vote even
though the Constitution of the United States was allowing most
others to vote. It seems to me that the Dred Scott decision perhaps
best epitomizes a situation we find ourselves in periodically, where
we are driven by the public opinion more than by rational policy.
So I would hope that we don't find that Dred Scott is a rational
basis for anything to be done these days for anyone bom in this
country. It seems to me that everything I have just said applies to
just the right to vote as well. I don't think that we would find much
progress in this world if we would have taken polls in 1954 if peo-
68
pie thought that Brown v. Board of Education was a good vote.
There are a lot of other decisions.
It seems to me that when you get elected to Congress or if you
get the privilege to serve in a high place like the Supreme Court,
you are asked to try to help formulate policy for this country that
will hold, if not as long as the Constitution, perhaps somewhere
close to it so that we are a nation of laws.
Let me ask a couple of questions. Unfortunately only two of the
members are left, but do either of the two members take the posi-
tion that they by accident of birth are also U.S. citizens?
Mr. BiLBRAY. I would not use the term of accident of birth. I
would say through the conscious effort of my mother I was born on
U.S. soil, specifically because of her conscious effort at not only im-
migrating but nationalizing. Frankly to say this, is that the prob-
lems of an immigrant, legal immigrant, I am sensitive to too. Like
I stated before, she was basically thrown out of navy housing be-
cause she was not a citizen. This issue of possible discrimination
or possible dividing lines being made is not just one based on eth-
nicity. It is also based on status as a resident.
Mr. Gutierrez. I have a funny feeling if it were not for World
War I and the fact that you had to draft literally tens of thousands
of Puerto Ricans from the island of Puerto Rico, and therefore
American citizenship was conferred that same year during World
War I, that my parents would not be citizens of the United States,
and that therefore, who knows? I might have come here as
Dominicans have come here undocumented, as Mexicans have come
here undocumented.
I mean I think the question is I'd like to do a survey at some
point of all the people who are legal citizens, who are citizens of
the United States of America whose parents came into this country
undocumented or through some illegal vehicle, but who today are
legally here in this country, and kind of make this retroactive to
kind of say where do we begin? Because we all know that most peo-
ple, a huge number of people come to this country undocumented.
You know, they come on a visitor's visa, but they fix things. You
know? We have the Amnesty Act of 1986. We do things to change
things and people do become citizens. They get married. There are
different vehicles that they use to become here legally. Their chil-
dren therefore are conferred that legality unto them.
I always like to use the word undocumented, because I hate to
think of a human being as being illegal. I think of actions as being
illegal, of an act as being illegal. But a human being, it just some-
how, an illegal human being doesn't fit well in my sense of defini-
tions of people and things.
Mr. Becerra. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Becerra. Mr. Bryant.
Mr. Bryant of Tennessee. Thank you, Mr. Chairman. It is a
pleasure to serve on this subcommittee. It's always very enlighten-
ing to hear different views and frustrations expressed by all parties
to these issues. Certainly coming from Tennessee, unlike some of
my colleagues from California or Texas, we don't seem to have the
problem that those States have.
My constituency, while I don't think we govern by the polls, I
think we are up here to represent our constituencies, and whether
69
it's by poll or how we determine what our constituency believes, I
think we are under obligation to represent them. I think certainly
every member in this room is doing just that.
But concerns, frustrations I hear in my district are about the
types of statistics that the gentlemen from California both talk
about. That is, roughly two-thirds of the births in indigent hos-
pitals in Los Angeles County, fit into this category. Congressman
Bilbray mentioned 40 percent, I believe, of the births in California
on Medicaid are affected by this. How much longer can we support
this type of situation?
I think Congressman Gutierrez mentions one possible option
would be to perhaps help bolster the economies of Mexico so they
wouldn't come over here. You know, at a time when we are strug-
gling as a country to balance the budget and fighting over what
money in the pie is divided, I just don't think that is feasible, that
tactic. I think we have to tighten our borders. To me, and I respect
all the folks on all sides of this issue because I know they are sin-
cere about their position, but it seems to me we have to do every-
thing we can to tighten up this situation. I want to remain legal
on these, and I certainly am going to study the various proposals,
the various versions here.
But I think the concept that is being offered here that offends so
many people, particularly that I represent, again, is what Brian
Bilbray said. You know, these folks are not even supposed to be in
the country. It doesn't matter to me, and I don't think it matters
to my constituents where these folks come from. I don't hear them
talking about Hispanic populations or Latinos in Tennessee. It's
that people are in this country illegally, whether they are from Ire-
land or Europe or Mexico, wherever, and they are on welfare.
Again, the statistics speak for themselves. That appears to be accu-
rate.
It so happens that a lot of these in Florida, Texas, and Califor-
nia, but I'm sure it's in other border States, the Northern border
and Eastern and so forth. That is the frustration that is reaching
me to cause me to want to support something like this. I think it
can be accomplished in a reasonable manner. I think your comment
that if we do it, we will increase the numbers of illegals in this
country, I guess we're just redefining them. It's sort of like the the-
ory that, well, we can cut crime by not calling certain actions, not
calling them crimes any more so we lessen the amount of crime in
the country, I don't think that will work, either, I think we've got
to — Sonny Bono said we've got practical problems here that call for
practical solutions. But we always end up taking the emotional side
of it, everybody does. Somehow we have to overcome that. I am
standing on my soapbox right now, but I think these folks have
some very real problems.
Mr. Gutierrez. May I just take an opportunity to quickly re-
spond?
Mr, Bryant of Tennessee. Yes.
Mr. Gutierrez. I think that number one, you deal with illegal
immigration to the country or undocumented immigration to the
country by dealing with the problems at the source. The problems
at the source — see as long as between at least the relationship in
our hemisphere between Central and South America and Mexico,
70
as long as the disparity is so huge between the standard of Uving,
the quaUty of life, and the possibility of success in life for yourself
and your children is so different between one side and the other,
you are going to have people coming here. You are not going to stop
it. People are not going to say, "Oh Grod, my child won't be an
American citizen. Therefore, let me not go to the United States of
America." You still have hunger. You still have pain. You still have
misery. You still have the expectation
Mr, Bryant of Tennessee. Assuming that we don't bolster these
economies, what is your answer to this?
Mr. Gutierrez. I think we have a North American Free Trade
Agreement, and so we need a hemispheric approach. Many times,
we look at Asia, we look at Europe, we look at their models of eco-
nomic development and engines at how they are beginning to work
together. We need a hemispheric approach. We have to think of
ourselves as Americans. I am an American, you are an American.
But if you are from Central America or South America, from Can-
ada, you are an American just as well. We live in a hemisphere.
It is about time we began to work together.
Mr. BiLBRAY. Mr. Chairman, if I may. In all fairness, we need
a hemispheric approach. But need a hemispheric approach that rec-
ognizes that the United States is part of this hemisphere. It is not
just Latin America. I believe in working with Mexico, but we also
have to look at making sure that it is easier to stay in their home
country. But also at the same time, we can't ignore the other half,
the poll, which is to reward them for violating the law and to come
here. You can't blame them.
In fact, there's a separate issue that I personally got involved
with this. I wish you could recognize that there may not have been
people killed this week in Bosnia, but there were four killed in my
neighborhood over illegal immigration, killed on the freeways,
drowned in the rivers. At the same time, recognize that this is not
something that just affects the United States. As Governor Ruffo,
the first freely elected Grovemor of Mexico in this century said, is
that we are creating problems in twofold. One, we are depriving
Latin America of the people that could force the social economic
changes that are desperately needed in their part of the world. Sec-
ond, is that we are creating problems to the frontier in Latin Amer-
ica. What he said is basically America needs to learn that sov-
ereignty is not just a right. It is a responsibility. We are creating
problems, not just on our side, but in Mexico's side.
I remind you, Mr. Chairman, there are nine dead police officers
in Tijuana that were assassinated that was directly related to this
problem last year.
Mr. Smith. Thank you, Mr. Bryant. We are going to go to Mr.
Watt. Then the Chair is going to indulge a colleague. I hope we
have a couple of minutes to do so in case Congresswoman Mink has
an observation or a question as well. We are going to finish with
this panel before the vote. When we come back, we'll take up the
next panel.
Mr. Watt is recognized for 5 minutes.
Mr. Watt. Mr. Chairman, I will try to expedite this and engage
in the unprecedented act on my part probably of not asking either
of these witnesses any questions. I would like to do two quick
71
things however. I would Hke to ask unanimous consent to submit
Mr. Conyer's statement for the record since he was unavoidably de-
tained.
Mr. Smith. Without objection, so ordered.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of Hon. John Conyers, Jr, A Representative in Congress
From the State of Michigan
Although I share the concerns of the other members regarding the problem of
women entering the United States for the sole purpose of giving birth to an Amer-
ican child, I cannot agree that a constitutional amendment is the solution to this
problem.
The mere idea of amending the Fourteenth Amendment to the Constitution sends
chills down my spine. The Fourteenth Amendment is of enormous symbolic impor-
tance— it defines the United States as a country committed to equality for all peo-
ple.
The Citizenship Clause of the Fourteenth Amendment — which reads "all persons
bom ... in the United States, and subject to the jurisdiction thereof," — was written
to repudiate the infamous Dred Scott Decision. This clause guarantees that the
United States population will not contain a hereditary caste of non-citizens.
The repeal of the birthright citizenship clause of the Fourteenth Amendment
would create a subculture of non-persons. This problem has been amply dem-
onstrated in Germany where violent acts are frequently committed against Turkish
people who are considered "immigrants" even though many of these people have
lived in Germany for generations.
Looking at Germany as an example, I cannot countenance a constitutional amend-
ment that will lead to even more racial strife than we already have in our country.
It horrifies me to think that we would amend the Fourteenth Amendment, of all
things, in order to permit discrimination against any group, much less innocent chil-
dren.
Demanding that certain children be treated differently from other children solely
because of the actions or status of their parents conflicts with our notion of equality.
It also conflicts with the general sentiment that legal burdens should bear some re-
lationship to individual responsibility or wrongdoing.
Finally, prohibiting the children of illegal immigrants from becoming citizens will
not solve the problem of illegal immigration. If the problem is that people are enter-
ing our country illegally, let us work harder to stop illegal immigration. But as long
as there is a mndamental disparity between the United States and countries with
historically poor job markets, repealing the Fourteenth Amendment is likely to have
little or no effect on immigration, but it will leave indeUble scars on our national
psyche.
Mr. Watt. I would like to engage just briefly in response to Mr.
Bono's question of whether this is convenient or a practical prob-
lem. I think we are in this area talking about constitutional rights.
I want to make sure he understands the difference between worry-
ing about practicality as opposed to constitutionality.
As a practical matter, it is very inconvenient for us to have the
first amendment in this country, but it is a constitutional require-
ment. As a practical matter, it is very inconvenient for us to keep
people out, of police officers from just engaging in (Jestapo meas-
ures to go into people's houses and engage in illegal searches and
seizures, but there is a constitutional principle at stake. Our Con-
stitution can be inconvenient. To the extent that you are using this
kind of practical shield to be synonymous with convenience or the
convenience of the majority, which is what I think we're engaged
in primarily here, primarily the white majority I would submit to
you, I think we are engaging in a very, very dangerous thing.
Mr. Bono. Can I respond?
Mr. Watt. I just want to caution you about this practical ap-
proach to everything. I have some rights here, whether it is con-
72
venient or practical to you or not. I am not going to sit quietly by,
although I'm not going to ask any questions, and have you trample
on those rights just for your convenience, and just because you
think it's practical.
I 5deld back the balance of my time.
Mr. Bono. Would the gentleman yield?
Mr. Smith. The gentleman is yielded back the remainder of his
time. The Chair, if Mr. Watt does not object, would yield the gen-
tleman one minute.
Mr. Watt. I didn't realize he was trying to get me to yield. I'm
happy to provide it.
Mr. Bono. Thank you. I certainly don't mean to trample on con-
stitutional rights. If that's the impression that I gave you or any-
one else in this room, I'm sorry. I'm just saying that throughout
time, situations change. If they are constitutionally accounted for,
that if they don't fit into today's society, I understand we have
amendments to the Constitution. So I presume that is why we do
have amendments to the Constitution, to take care of these situa-
tions that arise through time.
As far as the practical portion of what you are talking about,
what I find amazing is that if you look at sports, none of these is-
sues ever arise. I know sports is a specific area. But if you broaden
it up and look at it, they have rules. Those rules apply.
Mr. Watt. Let me reclaim my time just long enough to tell you
about my analysis of sports, Mr. Bono.
Mr. Bono. Whoever scores, they all hug them.
Mr. Watt. Can I reclaim my time, Mr. Chairman?
Mr. Smith. Mr. Watt is recognized.
Mr. Watt. Let me tell you why I think we don't have these prac-
tical problems in the area of sports, because we've got some real
statistical measurements. We had these problems in sports before
black folks were even allowed to participate in professional sports.
We finally got past them because we got some real logical criteria
other than race now to measure people by. I mean, we know how
many damn rebounds people get. We know how many points they
average and score. We know how many errors they make or turn-
overs they make on the basketball court. We select people based on
some specific criteria, rather than just your looking at them and
saying look, I don't like the way this person looks.
Mr. Bono. Would the gentleman
Mr. Watt. No. I won't yield. I'm tired of people talking to me
about sports, as if it solves all the problems of America. That does
not solve the problem of America. This is a diverse Nation. We
have got different looking people. We can't always measure their
ability to contribute to our nation based on whether they can shoot
a damn free throw or not.
Mr. Smith. Thank you, Mr. Watt. The Chair would like to in-
dulge Mrs. Mink before we go vote.
Mrs. Mink of Hawaii. Thank you very much, Mr. Chairman. I re-
gret that I have not been permitted an opportunity to present my
entire testimony, so I ask that it be inserted in the record at this
point.
Mr. Smith. Without objection, so ordered.
[The prepared statement of Mrs. Mink follows:]
73
Prepared Statement of Hon. Patsy T. Mink, A Representative in Congress
From the State of Hawaii
Mr. Chairman, as Chair of the Congressional Asian Pacific Caucus, I must protest
that the Caucus was not welcome to testify before the Subcommittee regarding pro-
posals to eliminate birthright citizenship. I vigorously dispute the view of the Sub-
committee that tiie Caucus' perspective is not necessary to the debate into national-
ity and citizenship.
It is true that Hispanic aliens would be heavily impacted by removing birthright
citizenship. However, it is a misconception that simply because so many Hispanic
aliens would be affected that Asians need not be heard when citizenship restrictions
are discussed.
Asians, more than any single racial group, have suffered from the U.S. discrimi-
natory immigration poUcies. Asians were the first targets of immigration restrictions
with the Chinese Exclusion Act of 1882 (which was not repealed until 1943). Asian
entry was further restricted by the Immigration Act of 1917, which set up the Asi-
atic Barred Zone. Perpetuating the vital total exclusion of Asians was the Quota Act
of 1921, which froze the ratio of immigrants to match the ethnic ratios already in
place as of 1920 — obviously, since virtually no Asians had been allowed to enter be-
fore, there were few slots allotted to Asians under the 1921 quotas.
It was not until after enactment of the Immigration and Nationality Amendments
of 1965 that Asians were allowed into the United States in significant numbers. A
large proportion of these immigrants were Indochinese refugees, particularly after
the fall of Vietnam and Cambodia in 1975. Yet, of the 55 million people on record
as having immigrated to the United States between 1820 and 1989, the vast major-
ity— 37 million — were European, 12 million came from the Americas, and only 5.7
million came from Asia. Given this very unbalanced history, I believe it is not en-
tirely coincidental that furor over immigration has erupted, at the very time in our
history that Asians and Hispanics are immigrating to the U.S. in larger numbers.
That said, I beUeve that all Americans — whether U.S. bom or not — should be ex-
tremely wary of the Constitutional amendments being considered today to restrict
birthright citizenship. Throughout American history, every Constitutional amend-
ment that the states ratified was framed to increase individual freedoms. The only
exception to this rule was the Amendment establishing Prohibition, which was soon
repealed. This Constitutional history compels us to very rigorously investigate any
proposal to restrict Constitutional liberties. I am quite puzzled that the party which
proclaims it is trying to reduce governmental intrusion would seek a Constitutional
amendment to restrict our freedoms.
These proposals to end birthright citizenship are so openly discriminatory as to
expose the underlying motives of the anti-immigrant movement. The very idea that
innocent children would be so harshly punished for the circumstances of their par-
ents proves that the anti-immigrant movement is actually afraid that immigration
is changing America's racial and cultural complexion. I challenge the sponsors to be
honest as to their intentions. If they want illegal aliens to leave, then they should
see to it that existing laws providing for deportation of illegal aUens are enforced
properly. But if they want to take the drastic step of denying citizenship rights to
innocent children bom within our borders, I can only conclude that they want to
protect not only our borders, but our racial make-up as well.
Most agree that a key factor that draws illegal immigrants to this country is the
chance to get a job, to support themselves. This has been the case, whether immi-
grants came from Asia, the Americas or Europe. There is no empirical evidence to
show that undocumented immigrants are coming to the U.S. specifically to obtain
pubhc benefits. In fact, illegal ^iens are already barred from participating in most
federal benefit programs in the first place. Furthermore, the proportion of illegal im-
migrants "caught" receiving benefits is very low, compared to the overwhelming
amount who contribute to our economy by working — often taking jobs that no Amer-
icans wUl.
What will happen to a child of an illegal aUen under this bill? If not considered
a citizen, this cMd could wind up stateless, if she is not considered a national of
the country of her parents' citizenship. Taking away birthright citizenship will thus
be horribly divisive to this country. Let us be realistic: children bom in the U.S.
are not going to leave. But depriving them of citizenship does separate them from
the rest of society, if does make them outcasts, it does deprive them of goods and
services, it does increase the risk that they will turn to criminal activity and thereby
become a burden upon the state, warehoused in our jails. This is hardly a recipe
for unifying America.
74
STATEMENT OF HON. PATSY T. MINK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF HAWAII
Mrs. Mink of Hawaii. I appreciate this opportunity to participate
in this hearing. Asians, more than any single group in this country,
have suffered under discriminatory policies. I do not need to take
the time of this committee to reiterate the Exclusion Acts, the cat-
egorization of Asian people who came to this country as ineligible
aliens, who' couldn't even become citizens by law until recent times;
the complete closure of immigration potential to Asians until the
1965 act. So we have a right to be in this room when you are talk-
ing about immigration policies because no other segment of this
country was more severely affected by the negative attitv des to-
ward people who did not look like the rest of America. That is why
I am here today, asking that you consider history before you amend
the Constitution.
The Constitution's amendments that are current here today have
always enlarged the rights for citizens in this country, for people
who lived here. It has never been the policy of this great Nation
to take away something. Nothing is more precious in this country
than our birthright. We have talked about our birthright. Sud-
denly, this bill or constitutional amendment, suggests that we in
this country have come to a point where we can no longer tolerate
these babies to become citizens and define birthright by some other
definition. I find this to be a very grave departure from the fun-
damental beliefs and freedoms of democracy.
So I urge this committee to expand the panelists to allow mem-
bers of the Asian Pacific community to come in and testify, and to
express their agonies about what they have endured. The intern-
ment in World War II was reprehensible. This Congress had to re-
mediate that by reparations. Let's not begin a new venture here
that takes away something that has been so precious, so inalien-
able as the birthright citizenship principle that has been so car-
dinal to our whole democracy.
So I thank the chairman for giving me time.
Mr. Smith. Thank you, Mrs. Mink. The subcommittee will recess
for 15 minutes.
[Recess.]
Mr. Smith. The subcommittee will reconvene. We will go to our
next panel, which consists of the Honorable Walter Bellinger, As-
sistant Attorney General, Office of Legal Counsel, U.S. Department
of Justice.
Mr. Bellinger, welcome. Thank you for your patience, which I'll
also thank the subsequent panelists for as well when their turn
comes up. If you would give us your testimony and try to limit it
to 5 minutes. Thank you again for being here.
STATEMENT OF WALTER BELLINGER, ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, BEPARTMENT OF
JUSTICE
Mr. Bellinger. Chairman Smith, thank you. Chairman Canady.
I appreciate being able to testify on behalf of the Bepartment of
Justice. I had planned to discuss with you, assuming that my
whole statement would be in the record, principally the question of
whether it would be advisable to amend the Constitution, because
75
I thought it so clear that the statutory alternatives would be un-
constitutional. In light of the discussion this morning, I thought it
might be appropriate for me to spend just a minute or two on why
I think that is so clear.
The Office of Legal Counsel deals with a number of exceedingly
difficult legal issues that keep us awake at night wrestling to what
we hope is a correct conclusion. This is not one of those issues. I
believe that the proposed statutory provisions are plainly unconsti-
tutional.
The text of the 14th amendment is as clear as text can be on
these matters. All persons bom in the United States and subject
to the jurisdiction thereof are citizens of the United States. The
question whether someone who is bom here is subject to the juris-
diction is not a difficult one. The Framers of the 14th amendment
clearly intended to have a very broad, very bright line, very objec-
tive rule. A rule which stated the fundamental principle that all
who are bom here are citizens, with the exceptions that are as old
as the rule itself, of those who are in fact representatives of a for-
eign government as diplomats or the writer's exception of an occu-
pying army, an exception that we saw in the case of McKay v.
Campbell, where there is no clear sovereign on Oregon with British
troops involved. With those exceptions, the baseline principle was
the one which the Constitution adopted.
Wong Kim Ark was a person whose parents being bom in China
were under the Chinese Exclusion Acts forever barred from becom-
ing citizens of the United States. So naturally enough, given the
fervor in the country at the turn of the century, the challenge was
made to whether Wong Kim Ark, born on the soil of the United
States could be a citizen if those who gave him birth themselves
were not and could never be citizens. The court took this issue on
in the United States v. Wong Kim Ark. It fully addressed the is-
sues. While it is true that his parents were not illegal aliens, the
court's opinion in Wong Kim Ark, which is 50 pages of the majority
opinion alone, so thoroughly canvases and deals with the question
of whether persons born in this country and subject to its jurisdic-
tion, under its laws, required to obey them, are citizens, and re-
solves that issue so forcefully in an opinion which has by no means
become an object of antiquity, but rather, has been cited and relied
upon for a proposition that's been adopted, and opinions of Attor-
ney Generals of the United States. In the Supreme Court, it has
been the assumption of the Court that this is the rule.
I take it that there is no doubt that the courts would decline to
overrule the central proposition of Wong Kim Ark. And that there-
fore, if this change were to be made, it would have to be made by
constitutional amendment.
Congress is of course free to propose and the States to ratify
amendments to the Constitution. You have that power. When you
undertake to exercise it, however, I would urge you to do so with
caution and restraint. The more frequently ihat we amend the Con-
stitution, and there are a variety of proposals, the less the Con-
stitution becomes a foundational document, a bedrock, something
that provides a security that we know what the fundamental, most
basic rules are.
76
This particular proposition that would be amended by these pro-
posals is one of those bedrocks. I simply want to ask you to con-
sider before amending the opening sentence of the 14th amend-
ment how it came to be part of our basic constitutional charter. It
is quite striking to me, as someone who has taught constitutional
history, to see in H.J. Res. 56 the statement, "The first sentence
of section 1 of the 14th article to the Constitution of the United
States is hereby repealed." I think it is important that you under-
stand how fundamental the first sentence of section 1 of the 14th
amendment is. That it was intended to deal with this very issue
of establishing the fundamental right of citizenship to those born
in America and subject to its jurisdiction. It arose in the aftermath
of the Dred Scott decision, where the court made its first huge ex-
ception to the rule that those bom here of free persons are citizens.
People often misremember Dred Scott, and believe it as a case
about whether the offspring of slaves or whether slaves could be
citizens. It is much more profound than that. What Dred Scott
holds is that a free person, which Dred Scott alleged himself to be,
a free person may not ever become a citizen of the United States
if he is descended from persons of African descent. They were ruled
out. That decision was part of a regime, part of a process that
played a critical role in the formation of one of America's great po-
litical parties. The decision in Dred Scott led the new Republican
Party's candidate for the Senate in Illinois to take on that propo-
sition as one of the central parts of the dynasty that he would op-
pose. That if you could say that persons bom in America are ex-
cluded from being citizens on that very fact, if you leave this to
judges and politicians and no longer have it be a fundamental as-
sumption, and if you couple with that, the extension of slavery into
the territories, you have created a dynasty which he declared his
new party to be dedicated to resisting. He said in Springfield, IL,
in 1858, "To meet and overthrow the power of that dynasty is the
work now before all those who would prevent that consummation."
In the aftermath of our tragic experience with our national
plunge into the heart of darkness of the Civil War, it is not surpris-
ing that we came out of that war with a Congress intent on propos-
ing to the nation that it be made a fundamental part of our charter
that all persons bom in the United States and subject to the juris-
diction thereof are citizens of the United States.
This takes away discretion about the basic issue of birthright
citizenship. It means that there should be no inquiry into whether
or not one came from the right cast or race or lineage or blood line
in establishing American citizenship. If you were bom here, we
care not the lineage of your parents.
Mr. Chairman, I see that my time is up. I will conclude and an-
swer your questions by simply stating that while other countries
and other theories might ascribe other kinds of citizenship, based
on mutual consent or some other theories of the continental writ-
ers, in this country, because of our tragic history, we have found
it profoundly important to establish citizenship by the simple fact
of birth in America, an easily provable fact when anyone's citizen-
ship is challenged. By that simple fact, you become a citizen of the
United States. We have tumed away from the notion that we
should create any other categories.
77
Before we amend this fundamental charter in a way that would
so change the basic presupposition of who becomes an American
citizen, I would urge you to exercise exceeding caution and re-
straint. Thank you.
[The prepared statement of Mr. Bellinger follows:]
Prepared Statement of Walter Bellinger, Assistant Attorney General,
Office of Legal Counsel, Department of Justice
Chairman Smith, Chairman Canady, and Members of the Subcommittees:
Throughout this countr^s history, the fundamental legal principle governing citizen-
ship has been that birth within the territorial limits of the United States confers
United States citizenship. The Constitution itself rests on this principle of the com-
mon law. ^ As Justice Noah Swayne wrote in one of the first judicial decisions inter-
preting the Civil Rights Act of 1866,2 the word '"Citizens' under our constitution
and laws means free inhabitants bom within the United States or naturalized
under the laws of Congress. We find no warrant for the opinion that this great prin-
ciple of the common law has ever been changed in the United States."^ When Jus-
tice Swayne wrote these words, the nation was only beginning to recover from a
great Civil War sparked in no small part by the Supreme Court's tragically mis-
guided decision in the Dred Scott case."* That decision sought to modify the founders'
rule of citizenship by denying American citizenship to a class of persons bom within
the United States. In response to Dred Scott and to the Civil War, Congress enacted
the 1866 Act, and Congress and the States adopted the Fourteenth Amendment in
order to place the right to citizenship based on birth within the jurisdiction of the
United States beyond question. Any restriction on that right contradicts both Foiu*-
teenth Amendment and the underlying principle that the amendment safeguards.
The several bills and resolutions now before Congress that would deny citizenship
to children bom in the United States to certain classes of alien parents raise various
issues of law and policy. My testimony today will address two points constitutional
law. First, because the rule of citizenship acquired by birth within the United States
is the law of the Constitution, it cannot be changed through legislation, but only
by amending the Constitution. A bill such as H.R. 1363, the "Citizenship Reform
Act of 1995, that purports to deny citizenship by birth to persons bom within the
jurisdiction of this country is unconstitutional on its face. Second, the proposed con-
stitutional funendments on this topic conflict with basic constitutional principles. To
adopt such an amendment would not be technically unlawful, but it would flatly
contradict our constitutional history and ovu" constitutional traditions. Affirming the
citizenship of African Americans that Dred Scott had denied, in 1862 President Lin-
coln's Attorney General wrote an opinion for the Secretary of the Treasury asserting
"[a]s far as I know. . . you and I have no better title to the citizenship which we
enjoy than the 'accident of birth' — ^the fact that we happened to be bom in the Unit-
ed States."^ Today, in 1995, we cannot and should try to solve the difficult problems
illegal immigration poses by denying citizenship to persons whose claim to be recog-
nized as Americans rests on the same constitutional footing as that of any natursd-
bom citizen. Members of both of your Subcommittees have worked vigorously, with
the Department of Justice on an even handed bipartisan basis, on legislation and
oversight to address these problems.
L
H.R. 1363, the "Citizenship Reform Act of 1995," exemplifies the various legisla-
tive proposals before the committees. The stated purpose of the bill is "to deny auto-
matic citizenship at birth to children bom in the United States to parents who are
not citizens or permanent resident aliens." Section 3(a) of the bill amends section
301(a) of the Immigration and Nationally Act, which grants U.S. citizenship "at
birth" to all persons "bom in the L^nited States, and subject to the jurisdiction
thereof" Specifically, section 3(a) proposes to define the phrase "subject to the juris-
* Indeed, the common law's inclusive rule of citizenship by birth defined "the People" who cre-
ated the Constitution. The Constitution itself does not make the citizens; it is in fact made by
them. It only . . . recognizes such of them as are natural — home bom." Citizenship, 10 Op. Att'y
Gen. 382, 389 (1862).
2 Act of April 9, 1866, eh. 331, § 1, 14 Stat. 27.
^United States v. Rhodes, 27 F. Cas. 785 (C.C.D. Ky. 1866) (No. 16, 151) (Swayne, J., on cir-
cuit).
* Scott V. Sanford, 60 U.S. (19 How.) 393 (1857).
s 10 Op. Att'y Gen. at 394.
78
diction thereor to include only children bom to U.S. citizens or permanent resident
aliens.
My office grapples with many difficult and close issues of constitutional law. The
lawfulness of this bill is not among them. This legislation is unquestionably uncon-
stitutional. The Fourteenth Amendment declares that "All persons bom or natural-
ized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside." The unmistakable purpose of
this provision was to constitutionalize the existing Anglo-American common law rule
of jus soli or citizenship by place of birth and espejnally to extend it to persons of
African descent and their descendants.
The phrase "subject to the jurisdiction thereoF was meant to reflect the existing
common law exception for discrete sets of persons who were deemed subject to a for-
eign sovereign and immune from U.S. laws, principally children bom in the United
Stetes of foreign diplomats, with the single additional exception of children of mem-
bers of Indian tribes. Apart from these extremely Umited exceptions, there can be
no question that children bom in the United States of aliens are subject to the full
jiuisdiction of the United States. And, as consistently recognized by courts and At-
torneys General for over a century, most notably by the Supreme Court in United
States V. Wong Kim Ark,^ there is no question that they possess constitutional citi-
zenship under the Fourteenth Amendment.
A. While the Constitution recognized citizens of the United States in prescribing
the qualifications for President, Senators, and Representatives, it contained no defi-
nition of citizenship until the adoption of the Fourteenth Amendment in 1868. Prior
to that time, citizenship by birth was regulated by common law. And the common
law conferred citizenship upon all persons'' within the territory of the United States,
whether children of citizens or aliens.^ The only common law exceptions to this gen-
erally appUcable rule of jus soli were children bom under three circumstances — to
foreign diplomats, on foreign ships, and to hostile occupying forces — which, under
principles of international law, were deemed not be be within the sovereignty of the
territory.^
As the legislative history of the Civil Rights Act of 1866 and the Fourteenth
Amendment makes clear, the definitions of citizenship contained in both were in-
tended to codify the common law and overrule Dred Scott's denial of citizenship to
persons of African descent. Thus, with the three limited exceptions already noted
and the additional exception of tribal Indians, the Fourteenth Amendment guaran-
6 169 U.S. 649(1898).
■^ Slaves, shamefully, not being considered persons at all for many legal purposes, were ignored
by the common law analysis.
8 E.g., Murray v. the Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 119 (1804) (presuming
that all persons bom in the United States were citizens thereoO, McCreery v. Somerville, 22
U.S.C (9 Wheat.) 354 (1824) (in determining title to land in Maryland, court assumed that chil-
dren bom in the state of an alien were native-bom citizens of the United States); Lynch v.
Clarke, 1 Sandf. Ch. 583 (N.Y. 1844) (in holding that child bom in New York during temporary
stay by alien parents was a citizen of United States, Court, after thorough examination of law,
concluded that it entertained no doubt that every person born within the dominions and alle-
giance of the United States, whatever the situation of his parents, was a natural-born citizen);
Letter from Mr. March, Secretary of State to Mr. Mason, United States Minister to France
(1854) 2 Francis Wharton, "Digest of the International Law of the United States" 394 (2d ed.
1887) ("(In reply to the inquiry which is made by you, . . . whether 'the children of foreign par-
ents bom in the United States, but brought to the country in which the father is a subject, and
continuing to reside within the jurisdiction of their father's country, are entitled to protection
as citizens of the United States,' I have to observe that it is presumed that, according to the
conunon law, any person bom in the United States, unless he be bom in one of the foreign lega-
tions therein, may be considered a citizen thereof until he formally renounces his citizenship.");
10 Op. Att'y Gen. 328 (1862) (child bom in the United States of ahen parents who have never
been naturalized is, by fact of birth, a native-born citizen of the United States); 10 Op. Att'y
Gen. 382 (1862) (reafTirming general principle of citizenship by birth in the United States and
rejecting the existence undei law of a class of persons intermecfiate between citizens and aUens);
Frederick Van Dyne, "Citizenship of the United States" 6-7 (1904) ("It is beyond doubt that,
before the enactment of the civil rights act of 1866 ... or the adoption of the constitutional
amendment, all white persons, at least, born within the sovereignty of the United States, wheth-
er children of citizens or foreigners, excepting only children of ambassadors or public ministers
of a foreign government, were native-born citizens of the United States." (citation omitted)).
^United States v. Wong Kim Ark, 169 U.S. 649 (1898); 4 Charles Gordon et al, "Immigration
Law and Procedure" §92.03[3] (rev. ed. 1995). See footnote 12 for a discussion of the status of
tribal Indians.
The principal alternative system, jus sanguinis, used in most civil law European countries,
grants citizens by descent or blood — that is, according to the citizenship of one's parents. This
system obviously could not have operated in the United States at its inception, where, except
for American Indians, the inhabitants were citizens of other countries.
79
teed citizenship to all persons bom in the United States, including children bom to
aliens.
The Civil Rights Act of 1866 provides that "[A]ll persons bom in the United
States, and not subject to any foreign power, excluding Indians not taxed, are here-
by declared to be citizens of the United States." During the debates on the Act, the
(Jhair of the House Judiciary Committee stated that the provision defining citizen-
ship is "merely declaratory of what the law now is," and he cited, among other au-
thorities, a quotation from William Rawle, whose constitutional law treatise was one
of the most widely respected antebellum works: "Every person born within the Unit-
ed States, its Territories or districts, whether the parents are citizens or aliens, is
a natural-bom citizen in the sense of the Constitution, and entitled to all the rights
and privileges appertaining to that capacity."*"
The Fourteenth Amendment initially contained no definition of citizenship. Sen-
ator Howard of Michigan proposed to insert the definition that became the opening
sentence of the Fourteenth Amendment:
'This amendment which I have offered is simply declaratory of what I regard as
the law of the land already, that every person bom within tiie limits of the United
States, and subject to their jurisdiction, is by virtue of natviral law and national law
a citizen of the United States."
He explained that this was not meant to include those discrete classes of persons
excluded by the common law, "but will include every other class of persons."**
The Framers intended the amendment to resolve not only the status of African-
Americans and their descendants, but members of other ahen groups as well. This
is reflected in the exchange between Senators Trumbell and Conness, supporters of
the Fourteenth Amendment and the Civil Rights Act, and Senator Cowan, a strong
opponent of both. Senator Cowan expressed his reluctance to amend the Constitu-
tion in such a way as would "tie the[] hands" of the Pacific states "so as to prevent
them from [later] dealing with [the Chinese] as in their wisdom they see fit." The
supporters of the citizenship clause responded by confirming their intent to constitu-
tionalize the U.S. citizenship of children bom in the Umted States to alien par-
ents. *2
"Senator Cowan. . . .1 am really desirous to have a legal definition of 'citizenship
of the United States.' What does it mean? ... Is the child of the Chinese immigrant
in California a citizen? Is the child of a gypsy bom in Pennsylvania a citizen?
Senator Conness .... The proposition before us . . . relates ... to the children
begotten of Chinese parents in California, and it is proposed to declare that they
shall be citizens. We have declared that by law; now it is proposed to incorporate
the same provision in the fundamental instrument of tiie nation. I am in favor of
doing so.*3
10 Cong. Globe, 39th Cong., 1st Sess. 1115 (1866); id at 1117 (quoting William Rawle, "A View
of the Constitution of the United States of America" 80 (1829)).
"Cong. Globe, 39th Cong., 1st Sess. 2890 (1866)
»2See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2891 (1866).
"See, e.g., Cong. Globe, 39th Cong., 1st Sess. at 2890-91.
A great deal of attention was spent on how (not whether) to exclude unassimilated or tribal
Indians. Ultimately, any reference to "excluding Indians not taxed" — the phrase used in the
Civil Rights Act of 1866— was omitted as unnecessary, as they were not deemed to be "subject
to the jurisdiction" of the United States because of the unique status of Indian tribes within
the United States. In Elk v. Wilkins, 112 U.S. 94, 99 (1884), the Court construed the "subject
to jurisdiction" clause in a case brought by an Indian claiming citizenship who was bom a mem-
ber of a tribe, but who had later taken up residence among the non-Indian citizens of the state.
The Court held he was not a United States citizen, because he was not "subject to the jurisdic-
tion" of the United States at the time of his birth. In construing the phrase "subject to the juris-
diction" the Court noted that the Indian tribes, sdthough not, strictly speaking, foreign nations,
were ahen nations with distinct pohtical communities with which the United States entered into
treaties.
"Indians bom within the territorial Umits of the United States, members of, and owing imme-
diate allegiance to, one of the Indian tribes (an ahen, though dependent, power) although in a
geographical sense bom in the United States, are no more bom in the United States and sub-
ject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amend-
ment, than the children of subjects of any foreign government bom within the domain of that
government, or the children bom within me United States, or ambassadors of other public min-
isters of foreign nations."
Id. at 102. See also David C. Williams," The Borders of the Equal Protection Clause: Indians
as Peoples," 38 UCLA L. Rev. 759, 832-41 (1991) (reviewing the legislative history of the citizen-
ship clause to conclude that "subject to jurisdiction" was intended to exclude tribal Indians with
separate laws and governments of their own, and thus were, "in modem international law par-
lance," a separate people") Wilkins cannot be interpreted to mean that children bom in the Unit-
ed States of ahens are not "subject to the jurisdiction" of the United States because their par-
Continued
80
C. The Constitutional guarantee of citizenship to children bom in the United
States to alien parents has consistently been recognized by courts, including the Su-
preme Court, and Attorneys General for over a century. Most notably, in United
States V. Wong Kim Ark^'* the Supreme Court held that a child bom in San Fran-
cisco of Chinese parents (who, under the Chinese Exclusion laws then in effect,
could never themselves become U.S. citizens) became at the time of his birth in the
United States a citizen of the United States, by virtue of the Fourteenth Amend-
ment.
The Court, in a detailed review of the Anglo-American common law of citizenship
and the legislative history of the Fourteenth Amendment, established several propo-
sitions. First, because the Constitution does not define United States citizenship, it
must be interpreted in Light of the common law. Under the common law of England,
which was adopted by the United States, every child bom within the territory of
alien parents was a natural-bom subject, with the exception of children bom of for-
eign ambassadors, of alien enemies dxuing hostile occupation, and of aliens on a for-
eign vessel.
Further, "[a]s appears upon the face of the [Fourteenth] Amendment, as well as
from the history of the times, [the amendment] was not intended to impose any new
restrictions upon citizenship, or to prevent any persons from becoming citizens by
the fact of birth within the United States, who would thereby have become citizens
according to the law existing before its adoption. It is declaratory in form, and ena-
bling and extending in effect." Id. at 676. Specifically, the Court explained, "[t]he
real object ... in auaUfying the words '[a]all persons bom in the United States,'
by the addition, 'ana subject to the jurisdiction thereof,' would appear to have been
to exclude, by the fewest and fittest words, (besides children of members of the In-
dian tribes, standing in a peculiar relation to the National Government, unknown
to the common law) the two classes of cases — childem bom of alien enemies in hos-
tile occupation, and childem of diplomatic representatives of a foreign State — both
of which ... by the law of England, and by our own law, . . . had been recognized
exceptions to the fundamental rule of citizenship by birth within the country." Id.
at 682.
"In concluding its review of the relevant law, the Court summarized: The Four-
teenth Amendment affirms the ancient and fundamental rule of citizenship by birth
within the territory, in the allegiance and under the protection of the country, in-
cluding all children here bom of resident aUens, with the exceptions or qualifica-
tions (as old as the rule itself) of the children of foreign sovereigns or their min-
isters, or bom on foreign public ships, or of enemies within and during a hostile oc-
cupation of part of our territory, and with the single additional exception of children
of members of the Indian tribes owing direct allegiance to their several tribes. The
Amendment, in clear words and in manifest intent, includes the children born, with-
in the territory of the United States, of all other persons, of whatever race or color,
domiciled within the United States. Every citizen or subject of another country,
while domiciled here, is within the allegiance and the protection, and consequently
subject to the jurisdiction, of the United States."
The Court then turned to the status of Chinese persons in the United States
under the Constitution and the Chinese Exclusion Acts, which provided for exclu-
sion and expulsion of Chinese persons. After considering the effects of both sources
of law, the Court held that Wong Kim Ark has become a citizen at birth by virtue
of the Foiuleenth Amendent, reaffirming the constitutional principle that "[t]he
Fourteenth Amendment, while it leaves the power, where it was before, in Congress,
to regulate naturalization, has conferred no authority upon Congress to restrict the
effect of birth, declared by the Constitution to constitute a sufficient and complete
right to citizenship." Id. at 703.
The principles set forth in Wong Kim Ark cannot be dismissed as having been
overtaken by contemporary judicial interpretation or cvurent events. Both the courts
and commentators have consistently cited and followed the principles of Wong Kim
Ark^^
ents may owe some allegiance to their own country of birth. Otherwise, dual nationality would
be prohibited.
The denial of citizenship to American Indians was later corrected by statute. 8 U.S.C.
§ 1401(B).
i* 169 U.S. 649(1898).
i^See Rogers v. Bellei, 401 U.S. 815, 829-30 (1971) (citizenship clause is 'declaratory of exist-
ing rights, and affirmative of existing law,' so far as the qualifications of being bom in the Unit-
ed States, being naturalized in the United States, and being subject to its jurisdiction are con-
cerned"); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 n.lO (1963) (confirming that the citi-
zenship clause" is to be interpreted in light of pre-existing common-law principles governing citi-
zenship"); Plyler v. Doe, 457 U.S. 202, 211 n.lO (1982) (relying on Wong Kim Ark's predomi-
81
I am aware of only one statement of the contrary view that birthright citizenship
may be modified by a simple act of legislation. In their 1985 book, Professors Peter
Schuck and Rogers Smith argue for a novel "reinterpretation" of the citizenship
clause. ^^ Briefly, the authors recommend replacing the "ascriptive" approach to citi-
zenship— which determines citizenship by an objective ciroumstance, such as place
of birth or citizenship of parents — with a "consensual" approach — ^which makes
poltical membership a product of mutual consent by the polity and the individual.
The authors argue that the Fourteenth Amendment may be reinterpreted to allow
Congress to deny citizenship to children of illegal aliens by legislation (as opposed
to constitutional amendment). As support, the authors attempt to show that the
Framers of the Fourteenth Amendment intended the reference to "subject to the ju-
risdiction" of the United States to replace the existing ascriptive common law prin-
ciple with one of express mutual consent. As one reviewer recommends, the authors'
proposals "should be relegated to academic debate."^''
Schuck and Smith are proposing a change in the law, not a plausible reinterpreta-
tion of the Constitution. Their theory would require repudiation of the language of
the Constitution itself, the clear statements of the Framers' intent, and the univer-
sal understanding of 19th and 20th century courts. Indeed, the authors themselves
concede that there is no judicial precedent in support of their theory. Moreover, as
one review of the book notes on a more philosophical level, "[t]he examples [Schuck
and Smith give in support of their consent theory] — the denial of citizenship to
Blacks, Indians and Chinese — are all deeply shameful for contemporary Americans.
This is not a history to bxiild on." ^^
In short, the text and legislative history of the citizenship clause as well as con-
sistent judicial interpretation make clear that the amendment's purpose was to re-
move the right of citizenship by birth from transitory political pressures. The Su-
preme Court noted in Wong Kim Ark,^^ "[t]he same Congress, shortly afterwards,
evidently thinking it unwise, and perhaps unsafe, to leave so important a declara-
tion of rights to depend upon an ordinary act of legislation, which might be repealed
by any subsequent Congress, framed the Fourteenth Amendment of the Constitu-
tion." More recently,, the Supreme Court noted in Afroyim v. Rusk 2° that the fram-
ers of the Fourteenth Amendment "wanted to put citizenship beyond the pov/er of
any governmental unit to destroy." See also Rogers v. Bellei, 401 U.S. at 835 (rec-
ognizing that "Congress has no 'power, express or implied, to take away an Amer-
ican citizen's citizenship without his assent,'" where that citizenship is attained by
birth). By excluding certain categories of native-bom persons from U.S. citizenship,
the proposed legislation impermissibly rescinds citizenship rights that are guaran-
teed to those persons by the citizenship clause of the Fourteenth Amendment. Such
a rescission of constitutionally protected rights is beyond Congress' authority.
nantly geographic interpretation of the "Jiirisdiction" clause of the Fourtheenth Amendment);
INS V. Rios-Pineda, 471 U.S. 444, 446 (1985) (in habeas proceeding brought by deportable
aliens, Court noted that respondent had given birth to a child, "who, bom in the United States,
was a citizen of this country"); Morrison v. California, 291 U.S. 83, 85 (1933) (noting that al-
though persons of Japanese descent were not eligible to become citizens through naturalization,
a person of Japanese descent is a citizen of the United States if he was bom within the United
States, citing Wong Kim Ark); 4 Charles Gordon et al., "Immigration Law and Procedure"
§92.03[2][e] (rev. ed. 1995) (noting that any uncertainty regarding the appUcability of the jus
soli rule to children bom in this country was "finally resolved by the Fourteenth Amendment
and the Supreme Court's decision in U.S. v. Wong Kim Ark. There is now no doubt that the
constitutional rule of universal citizenship for all persons bom in the United States is unaffected
by the status of their parents, except in minimal situations. Thus American citizenship is ac-
quired by children bom in the United States, even though their parents were always aliens, and
even if tiie parents were themselves ineligible to become citizens of the United States. Nor has
the acquisition of citizenship been affected by the circumstance that the child's alien parents
were in the United States temporarily or even illegally at the time the child was born." (foot-
notes omitted)).
^® Peter H. Schuck & Rogers M. Smith, "Citizenship Without Consent: Illegal Aliens in the
American Polity" (1985).
" Arthur C. Helton, "Citizenship Without Consent" 19 Intl L. & Politics 221, 226 (1986) (book
review). For incisive critiques of Schuck and Smith's work, see also, David A. Martin "Member-
ship Without Consent: Abstract or Organic?," 1 1 Yale J. of Int'l Law 278 ( 1985) (book review);
Gerald L. Newman, "Back to Dred Scott," 24 San Diego L. Rev. 485 (1987) (book review).
»8 David Howarth, "Citizenship Without Consent," 46 Cambridge L.J. 169, 170 (1987) (book
review).
19 169 U.S. at 675.
20 387U.S. 253, 263(1967).
82
II.
Congress is, of course, constitutionally free to propose, and the states to ratify,
any amendment to the Constitution.^^ Such naked power undeniably exists. The
Constitution taken as a whole, however, stands for certain endvuing principles.22
When Congress undertakes to tamper through the amendment process with the
most basic presuppositions of American constitutionalism, it should do so with ex-
ceeding caution and utmost restraint. The proposition that all persons born in the
United States and subject to its jurisdiction are citizens at birth is one of those bed-
rock principles.
Academics may conceive of nation-states in which citizenship would not nec-
essarily extend to those who lack the approval or mutual consent of existing citi-
zens. But the country in question is not some theoretical conception, but our own
country with its real experience and its real history. It would be a grave mistake
to alter the opening sentence of the Foiirteenth Amendment without sober reflection
on how it came to be part of our basic constitutional charter.
The constitutional principal with which these proposed amendments would tam-
per flows from some of the deepest wellsprings of American history. From the earU-
est days of our nation, with the tragic exception of slaves and tribal Indians, all
those who were bom on its soil and subject to no foreign power became its citizens.
The simple fact of birth here in America was what mattered.
And then came Dred Scott. In its most monumentally erroneous decision, the Su-
preme Court created a monstrous exception to the common law rule that birth on
American soil to a free person was sufficient for American citizenship. The Court
held that no persons of African descent — including free persons of African descent —
and none of their descendants for all time to come could ever be citizens of the Unit-
ed States regardless of their birth in America.
It was in the aftermath of this decision that one of our great political parties was
formed. In 1857, in the first of many speeches he was to give on the subject, that
party's candidate for President in 1860 denounced Dred Scott's creation of a class
of persons bom on American soil and yet without rights and condemned to pass
their status on to fiitvu-e generations. Abraham Lincoln declared that the defenders
of that decision had committed themselves to a principle that contradicted — and
that made a "mere wreck, a mangled ruin" — of the Declaration of Independence.^^
Afterwards, the nation plunged into the heart of darkness — a savage and brutal
civil war in which hundreds of thousands lost their lives on the battlefield. From
those ashes, a nation was reformed. It is no trivial matter that the Fourteenth
Amendment opens with the principle that some would now change. From our experi-
ence with Dred Scott, we had learned that our country should never again trust to
judges or poUticians the power to deprive from a class bom on our soil the right
of citizenship. We beUeve that no discretion should be exercised by public officials
on this question — there should be no inquiry into whether or not one came from the
right caste, or race, or Uneage, or bloodline in establishing American citizenship.
Other nations may seek more consensual and perhaps more changeable forms of
citizenship; for us, for our nation, the simple, objective, bright-line fact of birth on
American soil is fundamental.
Since the Civil War, America has thrived as a republic of free and equal citizens.
This would no longer be true if we were to amend our Constitution in a way that
would create a permanent caste of aliens, generation after generation after genera-
tion bom in America but never to be among its citizens. To have citizenship in one's
own right, by birth upon this soil, is fundamental to our liberty as we understand
it. In America, a country that rejected monarchy, each person is bom equal, with
no curse of infirmity, and with no exalted status, arising from the circumstance of
his or her parentage. All who have the fortune to be bom in this land inherit the
right, save by their own renunciation of it, to its freedoms and protections. Congress
has the power to propose an amendment changing these basic principles. But it
should hesitate long before so fundamentally altering our repubUc.
Mr. Smith. Thank you, Mr. Dellinger. A couple of questions for
you. First of all, I assume that your position is the Department of
Justice's position. Is that correct?
21 The only present exception to this rule is the proviso to Article V of the Constitution that
"no State, without its consent, shall be deprived of its equal Suffrage in the Senate."
22 See Walter Delhnger, "Constitutional PoUtics: A Rejoinder,'*^ 97 Harv. L. Rev. 446, 447,
(1983)
23 Speech at Springfield, Illinois (June 26, 1857), in 2 "The Collected Works of Abraham Lin-
coln" 406 (Roy P. Easier, ed. 1953).
83
Mr. Bellinger. That is correct. I am here to testify on behalf of
the Department of Justice.
Mr. Smith. Just briefly, do you feel that all illegal aliens should
be deported?
Mr. Dellinger. Mr. Chairman, that is not my area of respon-
sibility. I know that the Department has worked with your commit-
tee and has found that to be a very good working relationship, and
that the Department has undertaken a 40-percent increase in Bor-
der Patrol and a major increase in deportation.
Mr. Smith. I know. But my question is, do you favor the deporta-
tion of illegal aliens.
Mr. Dellinger. Yes. I believe that is our law. I do favor it and
the Department favors it. I believe that we have fairly dramatically
increased the number of deportations.
Mr. Smith. I am aware of that, as well. Let me go to the legisla-
tive history and ask you a couple questions there, because when I
read these words, I read into them a meaning that I think other
people do, but I would like to get your opinion on them as well.
This is awfully small print. This goes back to the original debate
in 1866 in Congress between the two Senators who were the pri-
mary proponents of the 14th amendment. If I can read it here, tell
me why this sentence wouldn't apply to illegal aliens today. They
talk about the amendment and say, "This will not of course include
persons bom in the United States who are foreigners, aliens, who
belong to the families of ambassadors or foreign ministers accred-
ited to the Grovemment of the United States, but will include every
other class of persons."
If that is a part of the original legislative history of the amend-
ment, doesn't that exclude individuals, even though they didn't in-
tend it at the time, wouldn't that encompass illegal aliens today?
Mr. Dellinger. I would not so read it. You have to recall that
this was an oral statement transcribed by a transcriber, who is in-
serting the commas. The plain sense of that passage is foreigners,
aliens who are not subject to the jurisdiction of the United States
are the ones who are excluded. It's not a freestanding exclusion of
aliens.
Mr. Smith. Let's just say I think that that's open to interpreta-
tion. I can understand why people would read the plain meaning
of the words aliens and foreigners to include people today who
would not — who would be the children of illegal aliens.
As far as the Court case history goes, I just have to tell you,
maybe we disagree on this a little bit. Both in the Ark case and
the in Dred Scott case, there was never the issue of children of ille-
gal aliens. As you pointed out in the Ark case, the parents were
legal immigrants. In the Dred Scott situation, I think that was en-
tirely different. To my knowledge, there is not a Supreme Court
case directly going to the issue of children of illegal adiens. Would
you agree with that or not?
Mr. Dellinger. I would agree with that if you understand that
that is a highly technical construct in light of the fact that the
Court first in Wong Kim Ark clearly addresses and deals at ex-
traordinary length with the very pointed issue of whether everyone
who is bom here is not subject to a foreign power as a diplomat
is a citizen. Secondly, that the Court in later cases such as Plyler
84
V. Doe assumes that Wong Kim Ark is the law of the land, treats
it as such, and does so as an assumption.
Mr. Smith. That is true, but as you know, the Supreme Court
likes to narrowly define issues and make them as narrow as pos-
sible. It just seems to me that it's a stretch for us to say that either
of those cases address the direct issue of the children of illegal
aliens. I know in the case of the Plyler decision, for instance, the
only reference was in dictum in a footnote. That's about as close
as they got. So I don't think any case is directly on target.
One more quick question. Do you feel that the children of illegal
aliens bom in the United States today pose any kind of a problem
to taxpayers? We're going to hear testimony a little bit later on
that the cost of the children of illegal aliens just in Los Angeles
County is over a billion dollars, when you include welfare and edu-
cation. There's other testimony that 16 percent of the births in all
of California now are to the children of illegal aliens. The appear-
ance there, let me say, is that law breakers are being rewarded,
taxpayers are being cheated, £ind citizenship is being cheapened.
You may or may not feel that that justifies changing the 14th
amendment. But my question is, do you think that that's a problem
in our society today?
Mr. Bellinger. Well, I certainly do think that, and the Depart-
ment's assumption and its work with this committee is based on
the assumption that illegal immigration is a problem. Our response
to this proposal is not simply or not only that it is unwise to amend
such a fundamental provision of the Constitution, but that that
deals with the problem at the margin.
Mr. Smith. My time is up. I heard your answer to say it's a prob-
lem. Then you went to the Department's view that we ought not
amend the Constitution. I understand that answer.
We'll go to Mr. Becerra for 5 minutes.
Mr. Becerra. Thank you, Mr. Chairman. Thank you, Mr.
Dellinger, for your testimony and that of the Department of Jus-
tice. Can you tell me what, and I'm asking you as a representative
of the Department of Justice, what the position of the department
is with regard to the definition of that word, subject to the jurisdic-
tion of?
Mr. Dellinger. I think that this is a very easy matter. We have
as few cases as we do on this point simply because it has gone
without sajdng. That all those who are born in the United States
and who are under its laws and obligated to obey them are citizens
by the clear text of the 14th amendment. That those who are, as
you know, diplomats and their families are exempted from having
to obey many of the laws. They simply have what we call diplo-
matic immunity. Obviously if an army were to occupy the North-
west United States, we would no longer be in control. But it means
something very simple. Are you subject to the laws of the United
States.
And about that, there is no doubt a child who is bom in Chicago
in the United States is subject to the jurisdiction of the United
States, must obey its laws, can be regulated, controlled by the
United States, can not invoke diplomatic immunity. It is as clear
as can be. Anyone who went into court to argue that a child bom
in a hospital in Chicago, IL, who was living in Chicago and had to
85
obey the laws of the State of Illinois and of the United States and
was fully subject to all its laws — anyone who would argue that that
person was not a citizen under the 14th amendment would have to
run first of all head long into the clear text, but then into the pre-
supposition of all of our cases in both the 19th and 20th centuries
and the conclusions of attorney generals.
So I think the chance that the Court would overturn that is as
close to a nullity as any proposition I have heard discussed seri-
ously in Congress.
Mr. Becerra. Let me make sure I am clear on something. Say
an individual parks illegally here on the streets of Washington, DC.
The car is issued a parking ticket. If it happens to belong to a dip-
lomat, that diplomat is not subject to the jurisdiction of the D.C.
courts and has no obligation to go to the court and pay that fine.
Mr. Bellinger, That is correct. You will recall that my senior
Senator from my home State, Senator Helms has proposed reduc-
ing the foreign aid of any country that hasn't paid its parking tick-
ets because there's no other way to enforce the law since they are
not subject to our jurisdiction.
Mr. Becerra. ITiat is a clear statement of what is interpreted to
mean — what we interpret to mean subject to the jurisdiction. Dip-
lomat and the diplomat's offspring are not obligated to appear be-
fore any court and actually obey any law in the United States now.
They are subject to exclusion from this country for diplomatic pur-
poses and through diplomatic channels. But in terms of a court
wanting to gain jurisdiction over that person, the court can not do
so.
Mr. Dellinger. Right.
Mr. Becerra. That doesn't happen to apply to anybody that is
not a diplomat, as you said, who happens to be bom in this coun-
try, whether they are bom of parents who are U.S. citizens, legal
residents or otherwise.
Mr. Dellinger. I think my simplest answer to you would be that
subject to the jurisdiction means under the laws and obligated to
abide by the laws. A child whose parents are undocumented aliens
from a foreign country are subject to the courts. If they are teen-
ager and get into trouble, they can be prosecuted. If there are is-
sues about child abuse or custody, those can be dealt with by the
courts because they are under the jurisdiction in the most straight
forward meaning of that term.
Mr. Becerra. Now let me ask you as an attorney. If I recall cor-
rectly, there is a standard practice within the practice of law that
words speak for themselves. So you don't need to look behind the
meaning of a word if it's a plain word, it's used plainly, and it's
very clear from the text what it says and what it means. As I un-
derstand the 14th amendment, it starts off by saying all persons
bom or naturalized in the United States.
Does there seem to be any ambiguity to you in what we mean
by all persons bom in the United States?
Mr. Dellinger. No. I do not think that is ambiguous.
Mr. Becerra. And even if you take a look — actually, it's an inter-
esting point. I don't know if most folks look at it this way, but it
is a fact that the 14th amendment was proposed to address the
problem that we faced in this country with regard to the African-
86
Americans in this country and the Dred Scott decision. I think it
is always forgotten that the African-American was an immigrant,
a compelled immigrant unfortunately, but they were the first immi-
grants to this nation in a sense that were compelled. While we
don't think of the African-American population as an immigrant
population, they in fact did have to immigrate, against their will
in many cases, to this country. It seems to me that we're talking
about an amendment that applied for a particular purpose, but ex-
tended beyond that, and the record shows that, congressional his-
tory shows that. Yet if you take a close look at this population that
was most the target of this protection, it was also an immigrant
population I would say.
Mr. Bellinger. The framers of the 14th amendment made the
decision, even though a principle focus was the rights of newly
freed slaves, not to so limit. The equal protection clause is not lim-
ited to equal protection of the laws for persons of color or the equal
protection of persons who have been newly freed slaves. They de-
cided to make general basic constitutional propositions. With re-
spect to the opening sentence, rather than simply saying persons
of African descent are citizens if they are born in the United
States, which would have literally overturned the problem, they
dealt more generally with the issue by once again reaffirming that
this should not be a discretionary judgement. That it should be a
bright line objective fact of birth here.
Mr. Becerra. Thank you very much. Thank you, Mr. Chairman.
Mr. Smith. The chairman of the Constitutional Law Committee
has the time.
Mr. Canady. Thank you, Mr. Chairman. I would like to begin by
thanking you for your leadership on this issue and apologizing for
my inconsistent attendance today. I apologize. I had two markups
going on this morning.
I will also point out that I am not a cosponsor of any of these
bills, and I'm not sure what the right approach is to dealing with
the issue that has moved members to introduce the constitutional
amendments and the statutory provisions. So I am listening with
great interest to the testimony.
I appreciate the Department of Justice's viewpoint on this.
Thank you, Mr. Bellinger, for being here to give us the benefit of
your 2inalysis of the issue.
Just one question I would like to ask you. Would you comment
on the case of Elk v. Wilkins. It's referred to in your written testi-
mony. I'd like to see if you believe that that case is consistent with
the later case of United States v. Wong Kim Ark and the views you
have stated today. Basicsilly in your testimony you say that it is.
But this is a case, as I understand it, in which the court dealt with
the case of an American Indian claiming citizenship who was born
a member of a tribe but who had later taken up residence among
non-Indian citizens of the state in which the individual was lo-
cated. The court determined that the Indian was not a citizen of
the United States.
Mr. Bellinger. You know, I do think it is not inconsistent with
anything that we have said here today. It is part of our sometimes
tragic history with respect to the relationship of this country to
tribal Indians. But the 1884 notion about subject to the jurisdiction
87
arose in a context in which, as the court could say, even though
they were in a geographical sense bom in the United States, they
were not subject to the jurisdiction thereof any more than the chil-
dren who were subject to foreign governments bom within the do-
main, that is, the children born of ambassadors. Because you know,
we entered into treaties with what we saw as the tribes of the In-
dian nation. So we treated them as separate sovereignties with a
separate jurisdiction, and that those cases are part of an exception
which Congress has itself corrected under statute, making all per-
sons bom here who are American Indian citizens by statute.
Mr. Canady. ok. I have no other questions. Thank you.
Mr. Smith. The Chair will indulge Mr. Bilbray.
Mr. Bilbray. Thank you, Mr. Chairman. The words, as pointed
out quite clearly, anyone born in the United States, the children of
diplomats, do they receive automatic citizenship under the 14th
amendment?
Mr. Bellinger. No. Because they are not subject to its jurisdic-
tion.
Mr. Bilbray. In other words, subject to its jurisdiction is a condi-
tioning clause that bears as much authority as the segment that
says
Mr. Bellinger. Right.
Mr. Bilbray. OK. Bo you feel that that segment is punitive
against the children of diplomats?
Mr. Bellinger. No. I do not.
Mr. Bilbray. Children of an occupying or invading army, do they
qualify for automatic citizenship under the 14th amendment?
Mr. Bellinger. They do not.
Mr. Bilbray. Bo you feel that it is prejudiced or punitive that
the 14th amendment has that condition?
Mr. Bellinger. I do not.
Mr. Bilbray. And you have already articulated that native
Americans who were bom under the tribal system in 1884 does not
recognize the Supreme Court as receiving automatic citizenship at
birth? Bo you feel that
Mr. Bellinger. That is correct. That is correct.
Mr. Bilbray. We can debate if that's punitive. OK. So I think
we've got the context that there are conditions here that are not
based on race, not based on prejudice, based on a common concept.
Let me throw something out. In this century, there was an occu-
pation of a Mexico City — I mean a New Mexico town by forces
under a man called Pancho Villa. In your definition of the 14th
amendment, if a child was born in that town at the time that
Pancho Villa occupied that town, would that child qualify for auto-
matic citizenship?
Mr. Bellinger. Not by virtue of being born while it was being
occupied by hostile forces, if there's a true occupation. That would
not be within the meaning of the amendment if the occupation
were substantial enough and covered a broad enough area. If the
United States is in control of the State itself, you could debate that.
Of course Congress has by statute made the children of American
citizens abroad our citizens. So there could be citizenship by par-
ents. But if someone was bom in an occupying army to someone
88
that came with that army, they are outside the jurisdiction in the
same sense that diplomats are.
Mr. BiLBRAY. Do you think that is a punitive issue against these
people?
Mr. Bellinger. No.
Mr. BiLBRAY. OK. Now the definition that you work on, is that
based solely on the 14th amendment reference to under the juris-
diction, or is that reference to under the jurisdiction a reference
back to British common law based on the Calvin case?
Mr. Bellinger. I think the 14th amendment stands on its own
bottom. It is informed by the history in this country of a common
law of birthright citizenship. It emerges out of our own experience.
Under the jurisdiction thereof in that sense just means exactly
what it says, under the effective jurisdiction of the United States.
Mr. BiLBRAY. Are you in agreement with the prevailing side of
the Wong Kim Ark case?
Mr. Bellinger. I think the case was correctly decided, yes.
Mr. BiLBRAY. Are you aware that in the Wong Kim Ark case the
prevailing side specifically referred to the Calvin case, and specifi-
cally referred to British common law, and specifically referred to
the conditions of the Calvin case that states quite clearly that — and
this is where we get into that basic concept of diplomats — refers to
those who are diplomats and the children would not qualify as chil-
dren of a hostile occupation. In that definition, they also referred
in parenthesis of those who — who are not in allegiance or in obedi-
ence to the sovereignty of the King.
Now as you refer to the Wong Kim Ark case, do you discount this
segment of the ruling which was used as a justification for the ex-
isting rule?
Mr. Bellinger. No. I do not. I do not discount it.
What I don't understand is how that has any effect on the con-
cept of those who are subject to the jurisdiction of the United
States. It is not a requirement — first of all, it is not a requirement
of that that one obey all the laws to be subject to its jurisdiction.
It is merely you are obligated to obey the laws. Secondly, the per-
sons whose citizenship is in question here are not themselves at
time of birth in disobedience of any laws.
Mr. BiLBRAY. The definition comes down to sovereign and the
right of sovereignty. That really — the invading army and the dip-
lomats we do not agree will be in violation of the sovereign or the
sovereignty issue. Thus, that's why they are not allowed to have
the automatic citizenship.
Mr. Bellinger. They may well be in opposition to the sov-
ereignty. But that is not why they are excluded from the 14th
amendment. They are excluded because they are not under the ju-
risdiction of the United States.
Mr. BiLBRAY. OK, Mr. Chairman, I will just state that I think
that the real technical issue here is that there is a violation of the
national sovereignty that occurs. As my colleague may not be
aware of, when we talk about being obligated to follow or being
under the authority of the law, illegal aliens are not under the
same obligation in a practical sense as a resident alien or a citizen.
I will give you an example. Minor offenses do not constitute crimi-
nal incarceration. They reflect a deportation, to where a U.S. citi-
89
zen who breaks into the house next door to mine would go through
the criminal process. The illegal alien who violates that law has the
option to accept that he is not under the jurisdiction and can leave
the country rather than having to fulfill the responsibility. Now
these are something that a citizen, a U.S. citizen does not have the
right to be up for.
Mr. Smith. Thank you, Mr. Bilbray. Mr. Becerra.
Mr. Becerra. Thank you. Are we going to have a chance to do
our second round of questioning?
Mr. Smith. We are not planning to do so. Do you have a question
you would like to ask now?
Mr. Becerra, Actually I'd like to engage the gentleman from
California, Mr. Bilbray.
Mr. Smith. The gentleman is recognized.
Mr. Becerra. First let me say that the gentleman is incorrect.
That individual, that undocumented immigrant is still subject to
the jurisdiction of that local authority to be prosecuted for that
petty offense. It just happens that there is an option provided to
the immigrant to be deported. Therefore, the local government can
avoid the cost of having to go through the trouble of prosecuting
and incarcerating or fining the person. So the immigrant is not out-
side the jurisdiction of the entity. It just is that they are given an
opportunity to be deported rather than stay.
But if I could ask the gentleman a question.
Mr. Bilbray. If you'd yield just a moment on that point.
Mr. Becerra. Sure.
Mr. Bilbray. But do you see that unless there is a distinct dif-
ference and line drawn there legally, there is the issue of equal
protection under the law, because the U.S. citizen is not given the
same option. Unless there is a distinct line drawn between the ju-
risdictional lines between the resident alien citizen and an illegal
alien.
Mr. Becerra. I think most people would rather pay less than a
thousand dollar fine than be deported from the country and lose all
rights to be in this country whatsoever. But that brings me to a
second point I'd like to try to engage the gentleman in conversation
on.
The gentleman I guess rests his theory about this definition of
subject to jurisdiction of the sovereignty on this language about al-
legiance and obedience to a sovereign. May I ask the gentleman a
couple of questions. Someone who bums an American flag is cer-
tainly in many cases and perhaps we'll soon determine with a vote
in the Congress and through the States that it will be a violation
of law to bum the American flag, to desecrate it. Would that be a
sho>ving of nonallegiance and disobedience that would require that
person to lose citizenship?
Mr. Bilbray. The reference to nonobedience and disobedience is
a reference to the sovereignty of the King.
Mr. Becerra. Isn't that being disobedient?
Mr. Bilbray. That may be in violation of law, but does not ques-
tion the sovereignty of the King. The sovereignty of the territory
was one of the biggest issues that was discussed. That is why dip-
lomats and invading armies both fall under a violation or an incur-
sion of the sovereignty of the jurisdictional authority.
90
Mr. Becerra. Now the gentleman is placing further parameters
on his definition of allegiance and to obedience. What of the situa-
tion of someone who in fact commits a violation of the law. Is being
disobedient to the laws of the sovereignty, does that mean that that
person not only should go to jail but lose citizenship?
Mr. BiLBRAY. I think you'll see after the Elk case that at the time
the child is bom, if the parent is in violation of the sovereignty as-
pect of the common law, then it becomes triggered. But it does not
become triggered afterwards. I think the Elk case clearly said you
either receive it at time of birth or you have to go to naturalization.
The other aspect of it, and let me clarify in the other case that
keeps being referred to with the Wong Kim Ark was just the oppo-
site side of that. The parents were obedient and did recognize the
sovereignty of the United States because they immigrated legally
with permission. At the time the child was born, the parents were
obedient and had reflected the sovereignty of the United States,
and they could not take it away from the child afterwards.
Mr. Becerra. So does this definition of obedience or allegiance,
is it ephemeral, how long does it last? If you are obedient one day
but disobedient the next, are you subject to losing your citizenship?
Or is it only at one point in time?
Mr. BiLBRAY. The Calvin case goes specifically to the fact of your
presence on the territory.
Mr. Becerra. Which means it could go on for
Mr. BiLBRAY. No. It goes on at the moment — basically, it applies
to the moment of birth of the child and the presence. What is the
presence of the parent at the time that they were on there. It goes
back to a case basically of an occupation without the consent of the
sovereign.
Mr. Becerra. Then, Mr. Chairman, let me just close with this.
If that is the definition, it is based on poignant time of birth. If you
take look at the reading of the 14th amendment, all persons bom
or naturalized in the United States and subject to the jurisdiction
thereof, I'm not sure how you'd determine if a nev/born is showing
allegiance or obedience to the jurisdiction of a country. But it
seems to me that it would be very difficult to prove what the intent
or the mind is of a newborn. It seems to me that you get yourself
into a convolution of arguments to try to say that obedience or dis-
obedience
Mr. Smith. Mr. Becerra, would you yield just for a minute?
Mr. Becerra. Of course.
Mr. Smith. "Subject to the jurisdiction" is going to be covered by
three panelists who are members of our last panel today. I think
we can probably continue the discussion if that's all right with you.
Mr. Becerra. Thank you.
Mr. Smith. Let me say to those who are present that we are
going to recess until 2:30, at which time Mr. Canady is going to re-
convene the subcommittee. Let me apologize. I will be a few min-
utes late because of a conflict in having to appear before another
committee, but expect to be back shortly after 2:30.
Mr. Bellinger.
Mr. Bellinger. Chairman Smith, I appreciate it. I just want to
make a one sentence comment. That is that the 14th amendment
might have been drafted to say as the Congressman would suggest
91
might flow from his reading of the English common law. It might
have been drafted to say all persons bom in the United States
whose parents are obedient to its laws are citizens of the United
States, but it doesn't say that. It's subject to the jurisdiction. That
is the amendment we have.
Mr. Smith. Thank you, Mr. Dellinger. The subcommittees will
stand in recess until 2:30.
[Recess.]
Mr. Canady [presiding]. The subcommittees will come to order.
We have decided to have one final panel, so that the witnesses
originally scheduled for panels three and four will be heard on the
same panel. On today's final panel we have Joan Zinser, deputy di-
rector of the Income Maintenance Bureau of the San Diego County
Department of Social Services. We will also hear from Prof. Peter
Schuck, Yale University Law School, Prof. Grerald Neuman of the
Columbia University Law School, Prof. Edward J. Erler of the
Claremont Institute and California State University, San
Bernardino. Our final witness will be Emily Jauregui Alcantar. I
want to thank each of you for being with us today. We look forward
to hearing your testimony.
Ms. Zinser.
STATEMENT OF JOAN ZINSER, DEPUTY DIRECTOR, INCOME
MAINTENANCE BUREAU, SAN DIEGO COUNTY DEPARTMENT
OF SOCIAL SERVICES
Ms. Zinser. Good afternoon. Chairman Canady, Mr. Becerra and
staff. My name is Joan Zinser. I am the deputy director for the In-
come Maintenance Bureau of the Department of Social Services in
San Diego County. That means I have responsibility for the admin-
istration of the AFDC, food stamp, and Medicaid programs; deter-
mining eligibility and access to those programs. I am here today to
tell you about the effects of illegal immigration on the county's as-
sistance programs and to present some other information regarding
impacts on other county-funded services.
I'd like to put the concerns of San Diego County into some per-
spective for you. We share the international border with Tijuana,
Baja California, Mexico. This border has the largest number of bor-
der crossings in the world. Seventy million people cross that border
every year. This border sector also has the largest number of ap-
prehensions of illegal aliens sinywhere in the United States. Stud-
ies estimate the 1.6 million illegal aliens enter the United States
annually through San Diego County, making the impact on our re-
gion enormous.
In 1993, illegal immigrants in San Diego County were estimated
to be 7.9 percent of the population, or approximately 220,000 peo-
ple. That is about equivalent to the population of Spokane, WA.
Our countys population is 2.7 million. In 1993, a State senate re-
port estimated that the State, local governments — primarily the
county — and schools in San Diego incurred $304 million in costs to
provide services to illegal immigrants. These costs were offset by
only $60 million in taxes generated by illegal immigrants, leaving
a net impact of $244 million to the taxpayer.
As mentioned earlier, by other speakers, when a child is a U.S.
citizen and his parent is an undocumented immigrant, the child.
I 92
but not the parent, is eligible for AFDC benefits. In 1992, in San
Diego County, there were 6,414 Medicaid funded births to undocu-
mented immigrant mothers in San Diego County hospitals. This
represented 38 percent of the Medicaid funded births in our county
that year. About half of these moms applied for AFDC benefits for
their babies. Thirty-four percent of these children remained on aid
1 year later. The cumulative effect of the citizen child cases contin-
ues to rise each year.
Public assistance is intended to support the citizen child. But
when this aid is paid directly to the immigrant parent, which it is,
it is no doubt used by that parent to support the entire family.
Costs for providing AFDC to citizen children cases in San Diego
County totaled $37 million in 1993, and we had about 5,000 cases.
In the State of California, these citizen child cases made up 13.4
percent of the total AFDC caseload in October 1993.
Additional costs are incurred in child welfare services. When we
combine the costs for out of home services for children and family
maintenance services, this adds an additional $1.7 million.
Medicaid services are an increasingly large portion of the costs
involved in illegal immigration. As I mentioned earlier, Medicaid
paid for over 6,000 births in San Diego County in 1992. Although
studies have shown that illegal aliens use fewer Medicaid services
than do the age equivalent members of the general population, sig-
nificant costs remain. Delivery costs are greater for babies whose
moms don't necessarily get appropriate prenatal care. In addition,
infectious diseases such as tuberculosis are also a concern for the
county. San Diego County has historically carried large costs be-
cause undocumented immigrants with health problems seek serv-
ices in our county. Many of these services are not funded by any
Federal grants or transfer payments.
Costs associated with providing emergency and pregnancy relat-
ed needs to the undocumented immigrants are paid for under re-
stricted Medi-Cal benefits. During 1992, an estimated $37 million
was paid for restricted Medi-Cal benefits. Other costs, including
uncompensated care in hospitals, community clinics and other un-
funded services elevated the costs in our county to over $50 million.
In the area of education, a recent video of students crossing the
border and getting on a schoolbus in San Diego County in order to
receive free education was shown nationwide. Locally, we have
worked to make sure that this situation
Mr. Canady. That means 5 minutes has expired. If you could try
to conclude your remarks as soon as possible.
Ms. ZiNSER. It is difficult to total the costs of services for citizen
children of illegal immigrants. However, the costs are substantial
on local governments, particularly those that abut the border. The
San Diego County Board of Supervisors urges the Federal Govern-
ment to take the following actions: reserve citizenship for children
of U.S. citizens and those whose presence in this country is legal
under immigration laws, increase resources provided to the INS
and Border Patrol, deny eligibility for health, educational services
and social services to illegal immigrants, and fully compensate local
agencies for any costs incurred in providing public services to ille-
gal aliens and their children bom in this country.
Thank you, on behalf of the board.
93
[The prepared statement of Ms. Zinser follows:]
Prepared Statement of Joan Zinser, Deputy Director, Income Maintenance
Bureau, San Diego County Department of Social Services
Good morning Chairman Smith and other honorable members of the Subcommit-
tee on Immigration and Claims. I am Joan Zinser, Deputy Director of the San Diego
County Department of Social Services. I direct the department's Income Mainte-
nance Bureau, which has responsibility for AFDC, Food Stamps and medicaid eligi-
bUity determinations. I am here today to tell you about the effects of illegal immi-
gration on the Countjr's assistance programs, and to present information regarding
impacts on other county-funded services.
To put the concerns of the County of San Diego into some perspective, you will
recall that the International Border in San Diego County experiences the world's
largest number of crossings, totaling over 70 million crossings per year. This border
sector also has the highest number of apprehensions of illegal aliens anywhere in
the United States. Studies estimate 1.6 million illegal aliens enter the United States
annually through San Diego County, making the impact on our region enormous.
impacts on SAN DIEGO COUNTY
In 1993, illegal aliens in San Diego County were estimated to be 7.9% of the popu-
lation, or a total of almost 220,000 illegal aliens in a county with a population of
slightly over 2V2 million. A 1993 California State Senate report estimated tiiat the
State, local governments — primarily the County — and schools incurred $304 million
in costs to provide services to illegal aliens. These costs were offset by only $60 mil-
lion in taxes generated by illegal aUens — leaving a net impact of $244 million.
welfare costs
When a child is a U.S. citizen, AFDC can be granted for the child but not the
parent, if the parent is an undocumented immigrant. In 1992 there were 6,414 chil-
dren bom to undocumented immigrant parents in San Diego County hospitals. Each
year, the illegal alien parents of nearly 2000 "citizen children" apply for and receive
AFDC in San Diego County. The cumulative total of these "citizen child" cases con-
tinues to rise each year.
Public assistance is intended to support the citizen child, but is paid to the illegal
alien parent and is, no doubt, used by the parent to support the entire family. Costs
for providing AFDC to "citizen children" cases in San Diego toteiled $37 million in
1993 for approximately 5430 AFDC cases.
Additional costs are incurred in Child Welfare Services. Combining costs for Out-
of-Home and Family Maintenance services to families of illegal aliens results in an
additional cost of $1.7 million.
medicaid and other health-related costs
Medicaid services are an increasingly large portion of the costs involved in illegal
immigration. In 1992, Medicaid paid for 6,414 births illegal alien mothers. Although
studies have shown that illegal aliens use fewer Medicaid services than do the age-
equivalent members of the general population, significant costs remain. DeUvery
costs are greater for babies with mothers lacking adequate prenatal care and many
medical conditions are treated more cost-effectively in their early stages. Infectious
diseases are also a major concern of the County. San Diego county has historically
carried large costs because of illegal aliens with these problems. Costs associated
with providing emergency and pregnancy related needs to illegal aliens are paid for
under "restricted Medi-Cal benefits." During the 1992 calendar year, an estimated
$37 million was paid for "restricted Medi-Cal benefits." Other costs, including un-
compensated care in hospitals, community climes, and other health services elevated
the 1993 total costs to over $50 million.
CRIMINAL JUSTICE
A recent 90-day pilot project involved having INS Agents present in the county
jails to interview those suspected of being an undocumented immigrant. Approxi-
mately 20% of the persons booked into the jails during that pilot were identified as
being illegal aliens. With annual bookings of approximately 105,000 persons a year,
it is estimated that up to 21,000 were illegal aUens.
According to the San Diego County District Attorney, 8,521 felony crimes were
committed by illegal aliens between 1987 and 1992. Illegal aliens commit an esti-
mated 22% of felony crimes committed in the county. The number of misdemeanors
23-492 0-96-4
94
committed during the same period in San Diego County by illegal aliens is esti-
mated to be 17,000. In 1993, approximately 15.1% of the cost accrued in dealing
with crimes were spent on illegal aliens. Costs for illegal aliens to the legal system
totaled $151 million in the County of San Diego for 1993.
EDUCATION
Recently, a video of students crossing the border and getting on a school bus in
San Diego County in order to receive free education was shown nationwide. Locally,
we have worked to make sure that this situation does not reciu-, but education of
the children of illegal aliens is also a significant cost. It is estimated that $60 mil-
lion was spent in San Diego County in 1993 for education of illegal aliens.
SUMMARY
Total costs for providing services to the citizen children of illegal aliens cannot
be clearly estimated. However, it is clear that a substantial number of persons come
to San Diego County with the express purpose of obtaining citizenship and public
benefits without regard for the law controlling immigration. The benefits accruing
to citizens are an attraction to illegal £diens and represent a great cost to our Coun-
ty. San Diego County, and many others are facing a financial crisis of critical pro-
portions. Expenditures for services are growing at a frightening rate, with no end
in sight. It is the decisions made here in Washington that are often the basis for
demands on local government. It is the conclusion of the Board of Supervisors of
the County of San Diego that extending pubUc benefits to those who have entered
the country illegal is improper. To resolve many of the problems faced by San Diego
County, we strongly urge tne federal government to take the following actions: (1)
Reserve citizenship for children of U.S. citizens and those whose presence in this
country is legal under immigration laws; (2) Substantially increase resources pro-
vided to the Immigration and Naturalization Service and to the Border Patrol to
control illegal immigration on the border; (3) Deny eligibility for health, educational,
and social services to illegal aliens; and (4) Fully compensate Local Agencies for any
costs incurred in providing public services to illegal aliens and their children bom
in this country.
The County of San Diego appreciates the opportunity to provide input to your sub-
committee and is encouraged by the interest the subcommittee has shown in ihe
problems caused by the granting of citizenship to children of illegal aliens. Please
contact me if you or your staff need further information.
Mr. Canady. Thank you, Ms. Zinser.
Professor Schuck.
STATEMENT OF PROF. PETER H. SCHUCK, YALE UNIVERSITY
LAW SCHOOL
Mr. SCHUCK. Mr. Chairman, members of the subcommittee,
thank you for inviting me to testify. My name is Peter Schuck.
Since 1979, I have been a teacher at Yale Law School where I
teach, conduct research and write on immigration law among other
areas.
In 1985, Rogers Smith, a political scientist at Yale, and I pub-
lished a book on this subject, "Citizenship Without Consent." We
later summarized the main argument of the book in an article. Our
book and article elicited considerable controversy among academics
and other specialists in the immigration field. At least one of our
critics. Professor Neuman sitting beside me, is testifying today.
In my testimony I describe the reasons why we found the birth-
right citizenship rule worth studying and felt that its anomalies
and perverse incentives called it into question. I am not going to
review that at this point, nor am I going to review the constitu-
tional analysis that led us to the conclusion that the birthright citi-
zenship rule is not constitutionally required. I would rather devote
my brief time to discussing the question of whether Congress ought
to change the rule.
95
Although my view is that the best interpretation of the constitu-
tional materials is that the current rule is not constitutionally re-
quired, and that Congress could therefore alter it by statute if it
wished to do so, I strongly believe that if the Congress were dis-
posed to change the rule, it should do so not by statute but by con-
stitutional amendment, difficult and time consuming as that might
be. In my testimony I explain the reasons for that strongly held
view.
Proceeding to the policy question at page five of my testimony,
I explain why the birthright citizenship rule is vulnerable to criti-
cism. I note the perverse incentives and local costs and the offense
to the consensual principles on which our Constitution and democ-
racy are founded, and the offense to common morality and common
sense in conferring citizenship on children whose only connection
to the United States is that their mothers crossed the border in
time to give birth here.
However, and this is the point I would like to emphasize in the
remainder of my time, the analysis cannot stop here. We live in a
complex world in which the moral and practical arguments seldom
fall on only one side. Birthright citizenship has some important ad-
vantages, even in a liberal polity like ours in which consent is the
central political value. Our current rule possesses the values of
simplicity and administrative clarity in an area in which uncer-
tainty and bureaucratic discretion would be particularly repugnant.
But its most important advantage is that it provides a crude but
pragmatic accommodation to a longstanding apparently intractable
policy failure, the substantial ineffectiveness of our border and in-
terior immigration enforcement programs.
Our feckless enforcement policies have created the possibility, in-
deed the certainty, that a large group of illegal aliens are neverthe-
less long-term or even life-long residents in the United States.
Without a birthright citizenship rule or another amnesty, these
illegals, their children, and their children's children will continue
to be outsiders, mired in an inferior and illegal status, and de-
prived of the capacities of self-protection and self advancement.
Whatever the disadvantages of birthright citizenship, it has the
great virtue of limiting the tragic effects of this problem of inher-
ited outlawry by confining illegal status to a single generation for
each family. The value of this should not be underestimated. In
order to gain a vivid picture of what a society without birthright
citizenship looks like, we need only look at Germany today.
Today, Germany's foreign-bom constitute almost nine percent of
its total population, higher than the Unites State's 8.7 percent. Mil-
lions of them have lived in Germany for two or more generations.
Germany, of course, is in many respects an admirable, highly suc-
cessful society. With respect to its assimilation of these long-term
residents, however, it has failed miserably. It countenances a level
of isolation among second and third generation residents that we
in the United States, whatever our other problems, have largely
managed to avoid. Part of Germany's failure has been to view most
of its foreign-born population as merely temporary workers, even
after it became plain that the workers were not going to return
home voluntarily — indeed, their families often joined them in Ger-
96
many — and that the Government was not prepared to deport them
forcibly.
Studies indicate that these families, many of which are in their
third generation in Germany, have not been assimilated into Ger-
man society. They constitute a more or less permanent class of the
disadvantaged. An important reason for this lack of integration is
Germany nationality law, which utterly rejects birthright citizen-
ship and bases citizenship instead on parentage on ethnic and lin-
guistic affinity.
Naturalization of aliens who lack German ethnicity is possible,
but the conditions are rather restricted when compared to natu-
ralization policies in the United States. Few of the foreigners with-
out German ethnicity have naturalized, and the level of mistrust
and alienation by these foreigners has grown so great that even a
liberalization of the naturalization law may not succeed in inducing
many of them to join the Grerman Nation. Unless this situation
changes, there is a great risk that they and their children and
grandchildren will continue to live there as strangers in a strange
land.
As tragic as this situation is in Germany, our situation in the
United States seems potentially worse in several respects. If we
eliminate birthright citizenship for illegal alien children, the rel-
ative gravity of our problem may well increase. Germany's four mil-
lion foreigners afl:er all, are there legally. Most of them enjoy the
same social, legal and economic rights as Germans do. As for politi-
cal rights, most of Grermany's foreigners are at least eligible to nat-
uralize once they have met the 10 year residency requirement.
In contrast, the United State's 4 million illegal aliens are just
that, illegal — with all the cumulative disadvantages that illegal
status entails. So long as they are illegal
Mr. Canady. If you could try to conclude as soon as possible.
Mr. SCHUCK. Yes. Well, I'll complete this paragraph and then
summarize the principles that I think ought to guide us.
So long as they are illegal, they can never naturalize. Without
a birthright citizenship rule, their children and grandchildren can
never naturalize. Yet we can be sure that regardless of their sta-
tus, they will continue to have children just like other people in
their childbearing years, which the vast majority of illegal aliens
are. These children remain permanently disadvantaged. American
society, not just the children, will suffer.
In concluding my testimony, I'd like to summarize four principles
that I think ought to guide the subcommittees as you proceed to
consider this issue.
One, it would be extremely imprudent, even irresponsible, to
eliminate birthright citizenship for illegal alien children unless and
until Congress adequately addresses the competing social values
that birthright citizenship, however crudely, serves to protect. In
particular, substantial increase in the effectiveness of immigration
enforcement, thereby significantly reducing the number of illegal
aliens who can reside in the United States for long periods of time,
should be an essential precondition to elimination of the current
rule.
Two, so long as the current birthright citizenship rule continues,
the immigration law should deprive the parents of any opportunity
97
to obtain immigration benefits through their birthright citizen chil-
dren.
Three. If birthright citizenship is ehminated for illegal alien chil-
dren, but such children nevertheless continue to reside in the Unit-
ed States, they should not be denied fundamental rights, rights
that serve not only their interests but those of the American society
in which they may spend much of their lives. I am not now pre-
pared to say precisely what those rights should be, but they should
certainly include access to public schools and emergency medical
care.
Finally, if Congress decides to eliminate the current birthright
citizenship rule, it must substitute a better rule, one that har-
monizes the compelling social values more effectively than our cur-
rent rule does. In this spirit. Congress should consider some vari-
ant of the approach, long contained in the French nationality law
and also to some extent in the British, which seeks not to eliminate
birthright citizenship for illegal alien children altogether but to
limit it to compelling categories of individuals. I explain in the re-
mainder of my testimony how that might be done.
In conclusion, let me emphasize once again the importance of rec-
ognizing the complexity and inevitably compromised character of
the policy choice that you face. With all due respect, I believe that
the pending legislation utterly fails to recognize either this com-
plexity or the need to compromise the conflicting values. I would
be the last person in the world to deny that the current rule grant-
ing birthright citizenship offends our consensual principles and cre-
ates perverse incentives. I do not wish to be understood as defend-
ing a rule that we subjected to a book length analysis and critique.
Even so, the U.S.'s situation could be worse, and I fear that the
pending legislation would indeed make it worse. Genuine reform
requires the Congress to address the root problem of illegal migra-
tion by taking effective steps to reduce the number of people who
live in the United States illegally. Then and only then can the Con-
gress responsibly consider eliminating birthright citizenship for il-
legal alien children. Thank you.
[The prepared statement of Mr. Schuck follows:]
Prepared Statement of Prof. Peter H. Schuck, Yale University Law School
Chairmen Smith and Canady, and Members of the Subcommittees: My name is
Peter Schuck. Since 1979 I have been a teacher at Yale Law School, where I am
the Simeon E. Baldwin Professor. One of the areas in which I teach, conduct re-
search, and write is immigration law. In 1985, Rogers M. Smith, a political scientist
at Yale specializing in American politics, and I published a book on the subject of
this hearing: "Citizenship Without Consent: Illegal Ahens in the American Polity"
(Yale University Press). We later summarized the main argument of the book in an
article entitled "Consensual Citizenship" published in the magazine "Chronicle"
(July 1992). Our book elicited considerable controversy among academics and other
specialists in the immigration field. At least one of our critics. Professor Gerald
Neuman of Columbia Law School, is testifying before you today.
Rogers Smith and I were initially moved to write our book out of a curiosity about
the origins and justifications of what is often called "birthright citizenship" (or jus
soli). ^ you know, birthright citizenship is a status granted pursuant to the prin-
ciple that the Constitution, with certain traditional exceptions well established at
common law, confers U.S. citizenship on any individual who is born on American
territory simply by virtue of that birth on the territory. Tradition has it that this
principle was estabhshed by the Citizenship Clause of Section 1 of the Fourteenth
Amendment, which provides: "All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and of the
98
State wherein they reside." It has long been assumed — although no court has ever
had occasion to hold — that this Clause extends automatic, constitutionallv required
birthright citizenship to the native-born children of illegal aliens and to "non-
immigrant aliens" (i.e., temporary visitors).^
Several things about birthright citizenship struck us as odd, even anomalous, in
light of the poUtical theory and constitutional history of the American polity. First
a principle of ascriptive citizenship-;-automaticaUy granting citizenship on the basis
of the accident of an individual's birth in a particular place — seemed inconsistent
with the consensual assumptions that guided the poUtical handiwork of 1776 and
1787. In a poUty whose chief organizing principle was and is the liberal, individ-
ualistic idea of consent, mere birth within a nation's border seems to be an inad-
equate measure or expression of an individual's consent to its rule and a decidedly
crude indicator of the nation's consent to the individual's admission to politicsu
membership. Second, this departure from consensual citizenship seemed especially
anomalous in 1985 (when our book was published), a year in which an estimated
4-5 milUon aliens already lived in the U.S. illegally, the INS had stopped more than
1.3 inillion more as they attempted to enter illegally, and an unknown but non-triv-
ial number of these illegal aliens were given birth to children on U.S. soil. In 1868,
when the Citizenship Clause was ratified, the federal government had not yet lim-
ited immigration; there was no such thing as an illegal alien under federal law. (The
first such limitation was enacted in 1875).^ Smith and I asked ourselves the follow-
ing question: How likelv was it that the Framers of the Fourteenth Amendment
would have intended the Citizenship Clause to confer automatic, constitutional
birthright citizenship on such children?
In order to answer this question, we investigated the historr of the political the-
ory and legal regulation of citizenship in the U.S., especially the principles and un-
derstandings that guided the Framers of the Citizenship Clause. These principles
and understandings, and their implications for the birthright citizenship of illegal
alien children, are the subject of our book. Rather than discuss our analysis in detail
here, I shall simply summarize our findings and conclusions.
Before doing so, however, I wish to draw a fundamental distinction between two
entirely separate questions that we considered in our book and that your Sub-
committees must consider in evaluating the bills that are before you.
First, there is the constitutional question. Here, the issue is whether birthright
citizenship for illegal alien children is required by the Citizenship Clause. If it is,
then any change in the current birthright citizenship rule can only be made through
a constitutional amendment. Our answer to this question, which I explain imme-
diately below, is that the best interpretation of the constitutional materials indicates
that the current rule is not constitutionally required and that the Congress could
therefore alter it by statute if it wished to do so. Despite this conclusion, I strongly
believe that if the Congress were disposed to change the rule, it should do so not
by statue but by constitutional amendment, difiiciilt and time-consuming as that
path might be. Although I am confident that our interpretation is correct, it is nev-
ertheless probably a minority view among the legal commentators who have consid-
ered it, and it is also inconsistent with Supreme Court dictum in a 1982 decision,
Plyler v. Doe. Such a change, moreover, would cut back on a valuable legal and po-
litical status and alter the traditional understanding of an important constitutional
provision. So far-reaching a change should not be adopted by a transient majority
in Congress. Finally, changing the rule could affect the vital interests of many
states whose views could be best elicited through the kind of deliberation entailed
by a constitutional amendment process.
The second question is one of public policy: Assuming that Congress possesses the
constitutional power to alter the traditional birthright citizenship rule, would it be
1 For the sake of simplicity, I shall refer to both categories — the native-bom children of illegal
aUen parents, and the native-bom children of legal non-immigrant aUens — collectively as "illegal
ahen children" even though the latter group is not in the U.S. illegally. I believe that the con-
stitutional and policy arguments with respect to the birthright citizenship status of both groups
are essentially tiie same. Although some distinctions between them could be made, such distinc-
tions are unnecessary for present purposes.
2 Professor Neuman has argued that some American states restricted entry of aliens into their
territories and that the federal government had banned the international slave trade, concluding
from this that some persons were probably in the United States in violation of these restrictions,
persons who could merefore be considered "Illegal aliens." The states' bans, however, applied
only to persons within their own borders, not the U.S. more generally. They were also known
to be of dubious constitutionahty and were eventually overturned by the Supreme Court. Al-
though Newman is correct that some Africans were probably in the U.S. in violation of the slave
trade ban, this fact never received any expUcit attention by the Framers of the Fourteenth
Amendment or the courts.
99
wise for Congress to do so? On this question, our book answered with a "perhaps."
After considering a number of substantial arguments on both sides of the question,
we concluded that eliminating birthright citizenship for illegal alien chilcfren and
nonimmigrant aliens might be desirable under certain preconditions. Any such
change must operate prospectively and should not be used to facilitate harshly re-
strictive immigration policies. The change must be part of a larger program to con-
trol illegal migration (thereby limiting the number of aliens, especially children, in
the U.S. illegally) through a combination of amnesty and enforcement policies^ and
it must assure non-discriminatory treatment (which is not the same as equal treat-
ment) of the illegal aliens who still elude detection or fail to gain amnesty. Today,
ten years later, we are more skeptical about the policy wisdom of simply eliminating
birthright citizenship for such children. Our most important precondition — effective
control of illegal migration, thereby minimizing the number of children growing up
in the U.S. wno would be denied birthright citizenship — has not, and perhaps can-
not, be met. We therefore find even more disturbing the evidence from European
nations indicating that societies that maintain high barriers to citizenship for people
who will continue to live in the society for most of their lives (whether legally or
illegally) bear terrible social costs. Birthright citizenship should not be changed un-
less it can effectively deal with this important problem.
THE CONSTITUTIONAL ISSUE
On the constitutional issue, our research led us to the conclusion that birthright
citizenship for illegal aUen children and nonimmigrant aliens is not constitutionally
required.
The immediate purpose of the Citizenship Clause and the preoccupation of those
who fi-amed it, of course, was to assure citizenship to the newly freed slaves, whose
capacity for citizenship had been denied by the Supreme Court in the infamous
Dred Scott decision that ushered in the Civil War. The Framers obviously did not
have the problem of illegal aUens on their minds, for the simple reason that no such
category then existed. The tasks, then, are to identify the underlying principle that
they thought they were adopting, and to apply that principle to the illegal alien chil-
dren question.
In the Clause, the Framers qualified birthright citizenship by denjring it to those
who not only are bom in the U.S. but are also "subject to the jurisdiction thereof"
In adopting this limitation, they sought to add to the ascriptive birthright citizen-
ship rule a conception of the consensual connection between an individual and his
or her government necessary to support birthright citizenship. This conception,
which derived from Locke and certain continental theorists of the late 18th century
who strongly influenced American public law, was profoundly political not just terri-
torial. The connection impUed by the phrase "subject to the jurisdiction thereof had
to be more than simply the individual's subjection to the government's police power
and criminal jurisdiction, more even than the individual's manifest desire for mem-
bership in the political community and the absence of any similar allegiance to an-
other government. It also demanded a more or less complete, direct power by gov-
ernment over the individual, and a reciprocal relationship between them at the time
of birth in which the government consented to the individual's presence and status
and offered him or her complete protection. In this view, the Constitution extended
the protection of citizenship to the child. It did so, however, only through the gov-
ernment's consent to the parents, whose own consent depended on the government's
promise that citizenship would be available to their children. In this way, even
birthright citizenship's inherently ascriptive nature flowed from consensualist com-
mitments.
Three types of evidence support our conclusion that the Framers' use of the "sub-
ject to the jurisdiction thereof phrase of the otherwise ascriptive Citizenship Clause
was meant to require this kind of connection between individual and government
as a precondition for birthright citizenship. The first — the Lockeian, public law her-
itage that the Framers brought to their task — has just been discussed. The second
is the legislative history of the "subject to the jurisdiction thereof phrase. The con-
gressional debates established the Framers' understanding that the Clause would
continue to confer citizenship on the native-born children of resident aliens and of
Indians who paid taxes, and would continue to exclude the categories of native-born
children traditionally excluded by common law tradition, principally those of dip-
lomats serving in the U.S. But in addition to resolving these specific questions of
the Citizenship Clause's coverage, the debates also brought to the surface the
3 We wrote in 1985, well before the amnesty and employer sanctions programs had been en-
acted.
100
central elements around which the Framers organized their more general principles
defining the scope and meaning of the Clause. The chief architects of the Clause
and indeed of the Fourteenth Amendment as a whole, Senators Trumbull and How-
ard, articulated their understanding that the "subject to the jurisdiction thereof cri-
terion entailed the requirement of "fiill and complete jurisdiction," a jimsdiction pre-
cluding "allegiance to anybody else." This requirement would clearly exclude the
then non-existent and thus unmentioned category of illegal ahens, who owe full alle-
giance to their own countries but none to ovu^. The third tjrpe of evidence was the
Supreme Court's interpretation of the "subject to the jurisdiction thereof Umitation
in two cases. In United States v. Wong Kim Ark* the Covirt recognized birthright
citizenship for the child of Chinese parents who were legally resident in the U.S.
but were themselves legally ineligible for citizenship. In Elk v. Wilkins^ it denied
birthright citizenship to an Indian who had been bom into a tribe on U.S. soil but
subsequently left the tribe to Uve in white society. (Forty years later. Congress ex-
tended birthright citizenship to Indians by statute.) In these cases, the Court drew
both on the public law authorities and on the Framers' congressional debates to
elaborate the interpretation that 1 have just described.
We conclude, therefore, that the Citizenship Clause does not prevent Congress
from withholding birthright citizenship from illegal aUen children should it wish to
do so.
THE POUCY ISSUE
The question of whether Congress should do so in the exercise of its policy discre-
tion is a genuinely difficult one. The arguments against continuing to extend birth-
right citizenship to illegal alien children, as the current rule does, are clear enough.
The prospect of acquiring such a valuable status for one's children almost certainly
constitutes an incentive for the parents to migrate here illegally. It is impossible to
know precisely how important a factor this is in shaping their migration decisions,
but one must presume that at the margin it is a non-trivial consideration. I have
done no original research on the questions of the number of illegal alien women who
gave birth in the U.S. at least in part to obtain citizenship for their children, and
the costs that they impose on local communities' public hospitals and other services.
The burdens are said to be heavy, however, and I have no reason to doubt that this
is true. Other witnesses who have studied these empirical issues will presimiably
testify about them. If one behoves, as I and most Americans do, that the continuing
flow of illegal migration to the U.S. is problematic and should be further limited,
then any nile that attracts more illeg^s is plainly counterproductive. When one
adds to these perverse incentives and local costs the offense to the consensual prin-
cipals on which our Constitution and democracy are founded, and the offenses to
common morality and common sense in conferring citizenship on children whose
only connection to the U.S. is that their mothers crossed the border in time to give
birth here, the argument in favor of change is even more compelling.
But the analysis cannot stop here. We live in a complex policy world in which the
moral and practical arguments seldom fail only on one side. Birthright citizenship —
even for illegal alien children — ^has some important advantages, even in a liberal
policy like ours in which consent is the central political value. Our cvirrent rule pos-
sesses the values of simplicity and administrative clarity in an area — the determina-
tion of citizenship status — in which uncertainty and bureaucratic discretion would
be particularly repugnant. But its most important advantage is that it provides a
crude but pragmatic accommodation to a long-standing, apparently intractable pol-
icy failure: the substantial ineffectiveness of our border and interior immigration en-
forcement programs.® Our feckless enforcement poUcies have created a possibility,
indeed a certainty, that a large group of Ulegal aUens are nevertheless long-term
or even lifelong residents in the U.S. Without a birthright citizenship rule or an-
other amnesty,' these illegals, their children, and their children's children will con-
tinue to be outsiders mired in an inferior and illegal status and deprived of the ca-
pacities of self-protection and self-advancement. Whatever the disadvantages of
birthright citizenship, it has the great virtue if limiting the tragic effects of this
problem of inherited outlawry by confining illegal status to a single generation for
each family.
"169 0.8.649(1898).
6 12 U.S. 94 (1884).
^The number of illegals already in the U.S. and the number now attempting to enter illegally
appear to have reached the levels the prevailed before the enactment of employer sanctions in
1986.
'As a political matter, another amnesty seems highly unlikely for the foreseeable future.
101
The value of this should not be underestimated. In order to gain a vivid picture
of what a society without birthright citizenship looks like, we need only look at Ger-
many today. I and Professor Neuman, who is perhaps the leading American aca-
demic expert on German public law, are currently participating with thirty Amer-
ican and German scholars in a comparative study oi U.S. and German immigration
and nationality policies. Our study includes an examination of the two countries'
policies toward assimilation of long-term residents.
For more than forty years, Germany has been a country of immigration, although
it does not think of itself as such.^ Between 1955 and 1973, Germany recruited
workers from Italy, Spain, Greece, Tiu"key, Morocco, Portugal, Tunisia, and Yugo-
slavia to work in German factories and fields, largely on a rotational basis. By 1973
when Germany abruptly halted this recruitment, 4 million foreigners lived in West
Germany, 6.5% of its population. By 1994, approximately 7 million foreigners lived
there, and the size of this group will increase rapidly in the future.^ Today, Ger-
manVs foreign-bom constitute almost 9% of its total population, higher than tiie
U.S. s 8%, and millions of them have lived in Germany for two or more generations.
Germany, of course, is in many important respects an admirable, highly successftil
society. With respect to its assimilation of these long-term residents, however, it has
failed miserably; it countenances a level of isolation among second- and third-gen-
eration residents that we in the U.S., whatever our other problems, have largely
managed to avoid. Part of Germany's failure has been to view most of its foreign-
bom population as merely temporary workers, even after it became plain that the
workers were not going to retxun home voluntaqrily — indeed, their famiUes often
joined them in Germany — and that the government was not prepared to deport
them forcibly. Studies indicate that these families, many of which are in their tnird
generation in Germany, have not been assimilated into German society; they con-
stitute a more a less permanent class of the disadvantaged, i**
An important reason for this lack of integration is German nationality law, which
utterly reiects birthright citizenship and bases citizenship instead on parentage (/us
sanguinis) and ethnic and linguistic affinity. Naturalization of ahens who lack Ger-
man ethnicity is possible but the conditions are rather restrictive when compared
to naturaUzation policies in the U.S. Few of the foreigners without German ethnicity
have naturalized,^* and the level of mistrust and alienation by these foreigners has
grown so great that even a liberalization of the natviraUzation law may not succeed
in inducing many of them to join the German nation. Unless this situation changes,
there is a grave risk that they and their children and grandchildren will continue
to live there as strangers in a strange land.
As tragic as this situation is in Germany, our situation in the U.S. seems worse
in several respects, and if we eliminate birthright citizenship for illegal alien chil-
dren the relative gravity of our problem many well increase. Germany's four million
foreigners, after all, are there legally and most of them enjoy the same social, legal,
and economic rights as Germans do. As for political rights, most of German^s
froeigners are at least eligible to naturalize once they have met the ten-year resi-
dency requirement. In contrast, the U.S.'s four million illegal aliens are just that —
illegal, with all the cumulative disadvantages that illegal stetus entails. So long as
they are illegal, they can never naturalize, and without a birthright citizenship nile,
their children and grandchildren can never naturalize. Yet we can be sure that re-
gardless of their status, they will continue to have children just like other people
in their childbearing years (which the vast majority of illegal aliens are). If these
children remain permanently disadvantaged, American society, not just the chil-
dren, will suffer.
The illegal parents and children, of course, could always go back where they came
from if their disadvantage is too oppressive. Many of them wiU indeed go home. The
problem, however, is that many others will not — partly because those places will no
longer be (and in the case of the children, many never have been) home to them.
®The data on Germany that follow are drawn from Rainer Munz and Ralf Ulrich, "Changing
Patterns of Migration: The Case of Germany, 1945-1994, unpub. ms prepared for German-Amer-
ican Migration and Refugee Policy Study, March 1995.
^In recent analysis, demographers projected a foreign population in Germany in 2010 of be-
tween ten and sixteen milUon, representing between 12 and 18% of the total population. Munz
and Ulrich, pp. 35-37. Unless Germany dramatically changes its rules, only a tiny fraction of
these foreigners will naturalize.
i^See, e.g., chapters by Munz et al. and by Richard D. Alba in "Opening the Door; US and
German Policies on the Absorption and Integration of Immigrants" (Peter H. Schuck, Klaus
Bade, and Rainer Munz, eds., forthcoming 1997).
11 Between 1974 and 1992, a total of only 311,000 discretionary naturaUzations of foreigners
without Germany ethnicity occurred — despite the fact that more than half of the foreigners liv-
ing in Grermany fiiliili the required residential period of ten years.
102
and partly because however disadvantaged they may be in a U.S. that bars them
and their children from obtaining citizenship, they might rationally conclude that
thev would be even worse off back in their home country. In short, millions of them
will remain in the U.S. once they have estabUshed themselves here. Again, the main
point for purposes of evaluating the pending legislation is not that this denial of ac-
cess to citizenship would be unfair to them; depending on the one's definition of fair-
ness, it may or may not be unfair. The main point is that having this permanent
underclass in our midst would be very damaging to American society.
We are, then, between a rock and a hard place — between the current birthright
citizenship rule, whose anomalous and perverse character I have devoted a book to
demonstrating, and the risk that eliminating this rule will transmogrify our already
large illegal population, with all of the problems it poses, into a much larger, mvdti-
generational, indeed permanent, aUen underclass. However justified, expressions of
moral indignation and condemnation of illegal alien mothers who give birth in
American hospitals will not help to resolve this dilemma.
The only way that it can be truly resolved is to reduce the number of illegal aliens
entering and living in the U.S. Generally speaking, this can be done in only two
ways — through more effective enforcement of^ the immigration laws, and through an
amnesty for those that remain or manage to elude the INS. The first is a hardy pe-
rennial, a permanent motif of congressional hearings like this — ^yet despite many
more resources for the INS and stringent enforcement authority, the situation never
seems to improve very much. Although the jury is still out on Operation Hold the
Line, for example, there is evidence that it too will prove to be, at best, only mod-
estly effective m the long run. ^2 The second, amnesty, essentially defines the prob-
lem away and in any event is politically unthinkable for the foreseeable future.
Where does this leave us? We face a very hard policy choice, one that cannot
produce a wholly satisfactory outcome but that might produce a better compromise
than does either the status quo or the proposed legislation. I would suggest that any
change in the birthright citizenship rule should adhere to the following four prin-
ciples:
1. It would be extremely imprudent, even irresponsible, to eUminate birthright
citizenship for illegal alien children unless and until Congress adequately addresses
the competing social values that birthright citizenship, however crudely, serves to
protect. In pjuticular, a substantial increase in the effectiveness of immigration en-
forcement, thereby significantly reducing the number of illegal aliens who can reside
in the U.S. for long periods of time, should be an essential precondition to eUmi-
nation of the current rule. Unfortunately, the legislative proposals pending before
the Subcommittee would simply eliminate the current rule without in any way al-
tering the conditions that have caused our present poUcy dilemma. Accordingly —
and despite the major problems with the current rule that we analyzed in our
book — I would oppose these proposals.
2. So long as the current birthright citizenship rule continues, the immigration
law should deprive the parents of any opportumty to obtain immigration benefits
through their birthright citizen children.
3. If birthright citizenship is eliminated for illegal alien children but such children
nevertheless continue to reside the U.S., they should not be denied fundamental
rights, rights that serve not only their interests but those of the American society
in which they may spend much of their Uves. I am not now prepared to say precisely
what those rights should be but they should certainly include access to public
schools and to emergency medical care.
4. If Congress decides to eliminate the current birthright citizenship rule, it must
substitute a better rule, one that harmonizes the competing social values more effec-
tively than our current rule does. In this spirit. Congress should consider some vari-
ant of the approach, long contained in the French nationality law, which seeks not
to eliminate birthright citizenship for illegal alien children altogether but to limit
it to compeUing categories. Under the French approach, birthright citizenship is re-
stricted to those children who represent the third generation of their families in the
country, or who have grown to maturity in the country. ^^ First, drawing on the
*2See, e.g., Verne Kopytoff, "Mexican Immigrants Find Rugged Terrain Easier," N.Y. Times,
November 26, 1995, p. 30 (migrants diverted to more eastern crossing points) Frank D. Bean
et al., Illegal Mexican Migration & the United States/Mexico Border: The Effects of Operation
Hold the Line on El Paso/Juarez (July 1994), p. 124 (operation more successful as to local cross-
ers than amoiu; long-distance migrants, who can go around the line).
'^In 1889, France adopted its "double /us soli" as well as the general statutory framework
for permitting children oom in France of parents not bom in France to become citizens after
a certain period of residence. In 1993, France amended the law to provide that a child bom in
France of foreign parents who were not bom in France can apply for French citizenship between
the ages of 16 and 21 if the child has resided in France for the preceding five years and meets
103
French principle of "double jas soli" a child who is bom in the U.S. would be a birth-
right citizen if one of the parents was bom in the U.S., even if that parent remains
in illegal status. This would at least prevent the cumulation of the inherited dis-
advantage of illegal stat as from extending beyond the second generation, as it can
today in Germany. It would also minimize problems of proof because a "double jus
soli" child need only provide the birth certificate of one U.S.-bom parent in addition
to the child's own birth certificate. A second attractive principle of the French sys-
tem that we might adopt is that illegal alien children at some point be permitted
to acquire U.S. citizenship upon a showing that they have resided here for a sub-
stantial, more or less continuous period of time, and perhaps can satisfy other rea-
sonable conditions such as the absence of a serious criminal record. Again, this
would recognize the continuing reality of long-term residence in the U.S. of some
illegal aliens, and seek to make a social virtue of that necessity by enabling them
to become integrated into the society in which, for better or for worse, they have
grown up.
In conclusion, let me emphasize once again the importance of recognizing the com-
plexity and inevitably compromised character of the policy choice that the Congress
faces. With all due respect, I believe that the pending legislation utterly fails to rec-
ognize either the complexity or the need to compromise the conflicting values. I
would be the last person in the world to deny that the current rule granting birth-
right citizenship offends our consensual principles and crates perverse incentives. I
do not wish to be understood as defending a rule that we subjected to a book-length
analysis and critique. Even so, the U.S.'s situation could be worse — and I fear that
the pending legislation would indeed make it worse. Genuine reform requires the
Congress to address the root problem of illegal migration by taking effective steps
to reduce the number of people who live in the U.S. illegally. Then — and only then —
can the Congress responsibly consider eliminating birthright citizenship for illegal
alien children. If the Congress nevertheless decides to repeal the rule now — before
it completes the more fundamental task of controlling illegal immigration — it has
an obligation to ensiu-e that the illegal alien children, who through no fault of their
own are caught in a tragic statusless situation, can in time become American citi-
zens and truly join the society in which they will have invested their pasts and are
likely to invest their fiitures.
Mr. Canady. Professor Neuman.
STATEMENT OF PROF. GERALD L. NEUMAN, COLUMBIA
UNIVERSITY LAW SCHOOL
Mr. Neuman. Mr. Chairman and members of the subcommittee,
I am honored to have been invited to testify with regard to propos-
als to amend the citizenship laws. I have given a fuller discussion
with documentation in the written supplement to my testimony.
To state my conclusions briefly: First, the constitutional law is
clear. Congress has no power whatsoever to deny U.S. citizenship
to children born in the United States to nonimmigrant or illegal
alien parents. Second, as a matter of policy, there are strong rea-
sons that favor preservation of the current rule.
The citizenship clause of the 14th amendment guarantees citi-
zenship to all persons bom in the United States and subject to the
jurisdiction thereof. The purpose of the clause was to overturn the
Dred Scott decision, which had excluded African- Americans from
citizenship, and more broadly to guarantee that the U.S. population
would not contain a hereditary caste of noncitizens vulnerable to
exploitation.
The meaning of the phrase "subject to the jurisdiction" has been
well established for a century. It means actual subjection to the
lawmaking power of the United States. It echoes the English com-
mon law notion of the King's protection. The common law excep-
certain other conditions. French Civil Code, Art. 19-3 and Art. 21-7. Prior to 1993, such a child
automatically acquired French citizenship at the age of 18 without having to apply for the sta-
tus.
104
tions included children of foreign diplomats, who were legally im-
mune from domestic law, and children bom to women accompany-
ing invading armies, who were practically immune from domestic
law. The original U.S. interpretation also included children bom as
members of Indian tribes, which were separate self-governing soci-
eties over which Congress did not exercise direct lawmaking au-
thority.
Nothing in the citizenship clause requires that the parents of a
child bom in the United States must be permanent residents rath-
er than temporary visitors or illegal aliens for the child to be sub-
ject to the jurisdiction of the United States.
This well-established understanding has been questioned today
because of a contrary theory invented in a book published in 1985
by Profs. Peter Schuck and Rogers Smith. I am very sorry to be so
critical of my friend Peter Schuck, but even Homer can nod, and
that book's argument is poorly reasoned and historically inac-
curate.
In the limited time available, I can emphasize only one of the
flaws in the revisionist argument. To reconcile their theory with
the citizenship clause. Professors Schuck and Smith offer an un-
precedented explanation of "jurisdiction." They say it means, "A
more or less complete, direct power by government over the indi-
vidual, and a reciprocal relationship between them at the time of
birth in which the Government consented to the individual's pres-
ence and status and offered him complete protection." In plain Eng-
lish, a child would not be subject to the jurisdiction of the United
States unless the United States consented to this child's status as
a citizen.
First, this is completely circular. It would really guarantee no
one citizenship at birth. Second, no one else has ever used the term
"jurisdiction" this way. This peculiar definition illustrates the im-
possibility of the revisionist project. There is no reasonable inter-
pretation of the constitutional language that will accomplish its
goals. Nor can the argument be reconciled with the legislative his-
tory of the 14th amendment or the Supreme Court's explanation of
the citizenship clause in Wong Kim Ark. Congress has no tenable
basis for attempting to amend the citizenship statutes without a
constitutional amendment.
I have only time, if any at all, to list briefly some of the other
problems raised by the proposed amendments to the citizenship
clause. At the outset, it must be recognized that changing the citi-
zenship rule would not remove the children of illegal alien parents
from the United States. In fact, it would not even make a substan-
tial contribution to the enforcement of the immigration laws. What-
ever the citizenship rule may be, many thousands of these children
will remain in the United States. Given that fact, the United
States benefits greatly by recognizing them as citizens.
The proposed amendments would harm U.S. society by creating
a hereditary caste of illegal alien inhabitants. Some of the proposed
amendments would deny citizenship to children bom to lawfully
admitted aliens who were not considered residents. There is no so-
cial problem justifying this change, and it could harm U.S. society
by creating hereditary categories of legal alien inhabitants.
105
The current rule is a bright line rule that protects all native bom
citizens. The proposed amendments would make the citizenship of
native born citizens less secure, because citizenship would be more
difficult to prove once it depended on the status of one's parents
and grandparents and so on, rather than on one's place of birth.
The proposed changes are incomplete because they withdraw citi-
zenship from certain children without specifying what the status of
those children will be and without providing those children any
substitute protections for their rights.
I can just refer you to my written testimony for additional prob-
lems raised by the proposed amendments. I thank you for the op-
portunity to address them.
[The prepared statement of Mr. Neuman follows:]
Prepared Statement of Prof. Gerald L. Neuman, Columbia University Law
School
I. introduction and summary
Mr. Chairman and members of the Subcommittee, I am honored to have been in-
vited to testify with regard to H.R. 705, H.R. 1363, and other proposals to amend
the citizenship laws of the United States to deny U.S. citizenship at birth to certain
categories of children bom in the United States. These various proposals raise a
lengthy series of questions, because they address different categories of alien par-
ents, and because some of them attempt to accomplish their goals by ordinalry legis-
lation, whUe others contemplate amendments to the Constitution.
Nonetheless, a brief summary of my testimony is possible: first, a clear statement
of law: unless the constitution is amended. Congress has no power whatsoever to
deny U.S. citizenship to children born in the United States to nonimmigrant or ille-
gal alien parents. Second, as a matter of policy: there are strong reasons why the
birthright citizenship for the children of nonimmigrants and illegal aliens shovdd be
preserved. Third, the proposals to amend the Citizenship Clause of the Fourteenth
Amendment raise further problems of constitutional policy.
II. WHY CONGRESS HAS NO POWER TO DENY U.S. CITIZENSHIP TO THE NATIVE-BORN
CHILDREN OF NONIMMIGRANTS AND ILLEGAL ALIEN PARENTS
A. The meaning of the citizenship clause of the fourteenth amendment
The Citizenship Clause of the Fourteenth Amendment reads: "aU persons bom or
natvu-alized in the United States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside." The longstanding inter-
pretation of this Citizenship Clause guarantees American citizenship to all children
Dom to aliens within U.S. territory, with a few minor exceptions I will mention
later. The status of the alien parents is irrelevant; they may be permanent resi-
dents, lawful nonimmigrants, or unlawfully present. The United States thus follows
a version of the jus soli rule of citizenship, citizenship by right of the soil, which
it inherited from the common law of England.
The historical purpose of this clause is well known: it was intended to overrule
the most infamous aecision in U.S. constitutional history, the Dred Scott decision.
Scott V. Sanford, 60 U.S. (19 How.) 393 (1857). One of the holdings of that case was
that the jus soli rule of citizenship applied only to whites: free persons of African
descent could not be citizens of the United States, even if they were bom in the
United States.
The original text of the Constitution had failed to specify any criteria for citizen-
ship in the United States, and the jus soli rule had been followed as part of our
common law heritage. That omission had made the Dred Scott decision possible.
After the Civil War, Congress sought to remedy that tragic error. Senator Howard,
the author of the Citizenship Clause, introduced it with the following explanation:
"It settles the great question of citizenship and removes all doubt as to what persons
are or are not citizens of the United States. This has long been a great desideratum
in the jurisprudence and legislation of this country." Cong. Globe, 39th Cong., 1st
Sess. 2890 (1866) (remarks of Sen. Howard).
The framers of the Fourteenth Amendment had strong reason for desiring a con-
stitutional settlement of the issue of birthright citizenship. They had just over-
thrown a system founded on denial of political membership in the country to a he-
reditary category of inhabitants. The Citizenship Clause was designed to prevent
106
that situation from ever happening again. Both the proponents and the opponents
of the Citizenship Clause understood this. For example, Senator Cowan, a vehement
opponent of the Fovu-teenth Amendment, complained that granting citizenship to the
children of Chinese alien parents on the Pacific Coast womd prevent the states from
"dealing with [the Chinese] as in their wisdom they see fit. In response, the sup-
porters of the Citizenship Clause expressly confirmed their intent to protect the chil-
dren of Chinese parents by recognizing them as citizens. See Cong. Globe, 39th
Cong., 1st Sess. 2890-92 (colloquy of Sens. Cowan and Conness) (1866); see also id.
at 498 (colloquy of Sens. Trumbull and Cowan regarding the 1866 Civil Rights Bill).
The legislative history of the Fourteenth Amendment provides strong confirmation
that birth in the United States would suffice to confer citizenship on children of
ahens of any race, as it had earlier done for children of unnatviralized European im-
migrants.
The legislative history also confirms that the framers of the Fourteenth Amend-
ment intended to deny constitutionally mandated citizenship to a few categories of
children, whom they regarded as not "subject to the jurisdiction" of the United
States, and therefore not within the protection of the common law jus soli rule. As
the Supreme Court explained in the leading case of United States v. Wong Kim Ark,
169U.S. 649, 682(1898):
"The real object of the Fourteenth Amendment of the Constitution, in qualif3dng
the words, 'All persons bom in the United States,' by the addition, 'and subject to
the jurisdiction thereof,' would appear to have been to exclude, by the fewest and
fittest words, (besides children of members of the Indian tribes, standing in a pecu-
liar relation to the National Government, unknown to the common law,) the two
classes of cases — children bom of alien enemies in hostile occupation, and children
of diplomatic representatives of a foreign State — both of which, as has already been
shown, by the law of England, and by our own law, from the time of the first settle-
ment of the English colonies in America, had been recognized exceptions to the fun-
damental rule of citizenship by birth within the country."
The common law did not consider as subjects or citizens children bom to aliens
who did not enter the country as individuals, but rather entered under the auspices
of their governments with legal or factual immunity from local law. Children bom
to ambassadors of foreign nations were covered by comity principles of international
law that restrain the state's exercise of lawmaking power. Children bom to parents
accompanying an invading army, enter under extraordinary circumstances that tem-
porarily oust the operation of local law. The example repeatedly used in the congres-
sional debates was the children of ambassadors. See e.g., Cong. Globe, 39th Cong.,
1st Sess. 2897 (1866) (remarks of Sen. Williams).
The framers of the Fourteenth Amendment also intended to deny constitutionally
mandated citizenship to a category of children whose parents were neither citizens
nor aliens: American Indians bom within their own organized political communities.
The tribes were separate, self-governing political communities whose sovereignty
predated the Constitution. At the time of the adoption of the Fourteenth Amend-
ment the federal government did not exercise legislative power directly over their
members, but negotiated treaties with the tribes as sovereign powers. See, e.g.,
Cong. Globe, 39th Cong., 1st Sess. 2895 (1866) (remarks of Sen. Howard); see also
Elk V. Wilkins, 112 U.S. 94 (1884). That is why both the original Constitution and
the Fourteenth Amendment excluded "Indians not taxed" — i.e., those living under
tribal governance, over whom Congress did not exercise the taxing power — from the
basis of apportionment. Indians living in their tribal societies were governed by
their own legal systems, like aliens who had remained at home under their own gov-
ernments and diplomats, and unlike alien immigrants and visitors, who became
subject to the laws of the state and federal governments upon entry. The effective
legal and miUteiry independence of many tribes from state or federal governance
made this notion of "domestic dependent nations" more realistic in 1866 than it sub-
sequently became.
This history is consistent with giving the phrase "subject to the jurisdiction [of
the United States]" its natural reading as actual subjection to the lawmaking power
of the United States; this interpretation fulfills the fi-amers' intentions and echoes
the common law notion that children become subjects of the King by being bom
within his "protection." This is exactly how the Supreme Court explained the mean-
ing of the Citizenship Clause in United States v. Wong Kim Ark.
Nothing in the language of the Citizenship Clause, its legislative history, or its
traditional interpretation, requires that the parents of a child bom in the United
States must be permanent residents, rather than temporary visitors, for the child
to be "subject to the jurisdiction" of the United States. Both the English tradition
and the Supreme Court's language in Wong Kim Ark treat temporarily present
aliens as equivalent to resident aliens for this purpose, because both are subject to
107
the authority of the government. See Wong Kim Ark, 169 U.S. at 655, 658, 674, 687,
688, 693; Calvin's Case, 7 Co. Rep lb, 6a ("[F]or [the alien] owed to the King local
obedience, that is, so long as he was within the King's protection; which local obedi-
ence being but momentary and uncertain is yet strong enough to make a natural
subject, for if he hath issue here, that issue is a natural bom subject.").
Nor is there anjrthing in the language, legislative history, or traditional interpre-
tation of the Citizenship Clause tnat would exclude children born in the United
States to aliens who are not lawfully present here. Clearly, deportable aliens are
subject to the jurisdiction of the United States — that is what makes them deport-
able, and often subject to criminal punishment as well. Their children born in the
United States, though not themselves guilty of violating any law, have no immunity
from the lawmaking power of the United States, and are fully subject to its jurisdic-
tion.
The appUcability of the constitutional jus soli rule to children of nonimmigrant
aliens and illegal aliens finds confirmation in the similar interpretation of the rule
by the United Kingdom and Canada. The United Kingdom followed this interpreta-
tion until 1981, when a different rule was adopted by statu te,^ and Canada still ex-
tends citizenship to all children bom in the territory except the children of foreign
diplomats. 3
B. The revisionist interpretation
Everything that I have said so far has been well-established for many years. This
traditional understanding has been questioned today solely because of a contrary
thesis argued in a book published in 1985 by two professors at Yale University,
Peter H. Schuck and Rogers M. Smith. I am sorry to be so critical of my friend Peter
Schuck, but even Homer can nod, and that book's argument for a revisionist inter-
pretation of the Fourteenth Amendment is poorly reasoned and historically inac-
curate.
The book, entitled "Citizenship without Consent: Illegal Aliens in the American
Polity," sets forth a theory of what it calls citizenship by mutual consent. Under this
theory, citizenship in a community should depend on the consent of both the individ-
ual and the community. The book's analysis of the political philosophy of citizenship
has been criticized,'' but more important for present purposes are the fallacies in
its effort to impose this philosophy on the Citizenship Clause of the Fourteenth
Amendment. I pointed out these problems in a review of the book in 1987,^ and
most of these errors were also identified by Professor Joseph Carens of the Univer-
sity of Toronto in his book review the same year.
First, the Citizenship Clause sets forth a constitutional rule guaranteeing citizen-
ship to a category of persons. That rule itself expresses the consent of the commu-
nity, and even on the book's own theory, there should be no need to look further.
Nonetheless, the authors of the book assert that the well-established traditional in-
terpretation of the Citizenship Clause would be inappropriate under a consent-based
theoiy, because it confers citizenship on children born to temporary visitors and ille-
gal aliens. The authors attempt to distinguish between permanent resident aliens,
on the one hand, and temporary visitors and illegal aliens, on the other, claiming
that the community consents to the membership of the children of permanent resi-
dent aliens but not to the membership of chilaren of temporary visitors or illegal
aliens. This argiunent, however, is circular: the only evidence that the United States
has consented to the membership of the children of permanent resident aliens is the
same evidence that supports the traditional y'us soli rule, which is broader.
Second, the revisionist argument requires a new interpretation of the language
"subject to the jurisdiction" of the United States, in order to reconcile the theory
with the language of the Citizenship Clause. The authors claim that the meaning
of "jiuisdiction" in the Citizenship Clause is: "a more or less complete, direct power
2 See J.M. Evans, Immigration Law 77-80 (2d ed. 1983); British Nationality Act 1981, ch. 61,
§1(1) (Eng.) (limiting citizenship to children of citizens and of aliens who are legally settled in
the United Kingdom). Children of non-settled or illegal aliens, however, become entitled to citi-
zenship if they remain the first ten years of their life in the United Kingdom (allowing annual
absences up to 90 days). Id § 1(4).
The change in British nationality law was part of the process of the United Kingdom's dis-
engagement from its former overseas empire and restriction of nonwhite immigration from
former colonies. See Evans, supra.
3 Citizenship Act, R.S.C., ch. C-29, &3(lXa), 3(2) (1991) (Can.).
''See, e.g., Joseph H. Carens, Who Belongs? Theoretical and Legal Questions about Birthright
Citizenship in the United States, 37 U. Toronto L.J. 413 (1987); David A. Martin, Membership
and consent: Abstract or Organic?, 11 Yale J. Int'l L. 278 (1985); David S. Schwartz, The Amo-
rality of Consent, 74 Cal. L. Rev. 2143 (1986).
5 Gerald L. Neuman, "Back to Dred Scott?", 24 San Diego L. Rev. 485 (1987).
108
by government over the individual, and a reciprocal relationship between them at
the time of birth, in which the government consented to the individual's presence
and status and offered him complete protection." (p. 86 (emphasis added)). In other
words, a person is not "subject to the jurisdiction" of the United States unless the
United States consents to the person's status as a citizen. This completely circular,
and so would really guarantee no one citizenship at birth. And it has no relation
to any definition of "jurisdiction" that anyone else has ever proposed. This peculiar
definition of "jvuisdiction" should be regarded as demonstrating the impossibility of
tiie revisionist project: there is no reasonable interpretation of the constitutional
language that vnll accomplish the revisionists' goals.
Third, the book sometimes states that a person is "subject to the jurisdiction" of
the United States only if that person owes no allegiance to any foreign country, (pp.
83, 86.) But this claim contradicts the book's own thesis that children bom to per-
manent resident aliens are U.S. citizens. It contradicts the legislative history of the
Fourteenth Amendment, which emphasized the citizenship of the children of Chi-
nese immigrants, and it directly contradicts the Supreme Court's decision in United-
States V. Wong Kim Ark, which the authors otherwise attempted to preserve.
(A similar error has occurred when other proponents of a change in the citizen-
ship laws (but not Professors Schuck and Smith, who do not make this error) have
called attention to a fragment of the legislative history in which Senator Howard
stated that the Citizenship Clause "will not, of course, include persons bom in the
United States who are foreigners, aliens, who belong to the families of embassadors
or foreign ministers accredited to the Government of the United States, but will in-
clude every other class of persons." Cong. Globe, 39th Cong., 1st Sess. 2890 (1866)
(remarks of Sen. Howard). This fragment does not support the revisionist interpre-
tation. There are only two plausible interpretations of this fragment: either the lan-
guage "foreigners, aliens, who belong to the families of embassadors" refers to a sin-
gle class of "foreigners who belong to the families of embassadors," or the language
includes both foreigners in general and aliens who belong to the families of
embassadors. The first meaning simply confirms the traditional interpretation of the
Citizenship Clause — diplomats' children are not included. The second meaning does
not support the revisionist interpretation at all, but would mean that no children
of foreigners, not even children oi permanent residents, would be U.S. citizens. Only
citizens' children would be citizens. This would mean that the Fourteenth Amend-
ment had suddenly shifted U.S. citizenship law from the common law jus soli rule
to the Continental jus sanguinis rule, and that Wong Kim Ark was wrongly decided.
This extreme change would not only have escaped the notice of the Supreme Court;
it would also have escaped the notice of the other Senators, who debated Senator
Howard's proposal on the understanding that it would confirm the citizenship of
children bom to Chinese immigrants and Gypsies. Clearly, the first interpretation
of this fragment is correct: Senator Howard was articulating the traditional inter-
pretation of the Citizenship Clause.)
Fourth, the authors characterize their interpretation of "subject to the jurisdic-
tion" as adding "a transforming consensual conception" to the traditional jus soli
rule. (p. 85.) But the legislative history makes it very clear that the framers of the
Fourteenth Amendment were not trying to adopt a transformative new conception
of citizenship by consent. That was what the Supreme Court had done in the infa-
mous Dred Scott decision, excluding African-Americans from the jus soli rule on the
ground that whites did not consider them appropriate partners in the political com-
munity. The framers sought to overturn that innovation, and to reaffirm on a ra-
cially neutral basis the same principles that had always governed American citizen-
ship for persons of European descent. The Supreme Court has rightly emphasized:
"As appears upon the face of the amendment, as well as from the history of the
times, tnis was not intended to impose any new restrictions upon citizenship, or to
prevent any persons from becoming citizens by the fact of birth within the United
States, who would thereby have become citizens according to the law existing before
its adoption. It is declaratory in form, and enabling and extending in effect."
United States v. Wong Kim Ark, 169 U.S. 649, 676 (1898).
Fifth, the book claims that the framers of the Fourteenth Amendment could not
have contemp'ated conferring citizenship on children of illegal aliens "for the simple
reason that no illegal aliens existed at that time, or indeed for some time there-
after." (p. 95). This too is a fallacy. The federal government was not actively en-
gaged in regulating immigration from Europe before the Civil War, but many of the
states were.® And, more importantly, the federal government itself had been at-
®I have discussed antebeUum state immigration law at length in the article "The Lost Cen-
tury of American Immigration Law (1776-1875)," 93 Colum. L. Rev. 1833 (1993). I should add
109
tempting to prohibit the international slave trade, a form of involuntary immigra-
tion. Under the revisionist theory, children bom in the United States to illegally im-
ported slaves would not have been guaranteed citizenship by the Fourteenth
Amendment, because the United States government did not consent to their parents'
presence in the country. This would contradict the clear purpose of the Civil Rights
Act of 1886 and the Fourteenth Amendment to overturn the Dred Scott decision and
to guarantee U.S. citizenship to all persons of African descent bom in the United
States.
Thus, for numerous reasons,'' the revisionist argument provides no legally tenable
basis for altering the traditional interpretation of the Citizenship Clause of the
Fourteenth Amendment. All persons bom in the United States and subject to its ju-
risdiction are citizens. Neither Professors Schuck and Smith nor any other revision-
ists have put forward any plausible interpretation of the language "subject to the
jurisdiction" of the United States that would accommodate their argument. And
their argument cannot be squared with the clear tenor of the legislative history.
If Congress attempts to amend the citizenship statutes without a constitutional
amendment, it will be acting unconstitutionally. The courts are certain to invaUdate
such action and vindicate the children's citizenship just as the Supreme Court did
in Wong Kim Ark Unfortunately, however, the courts' decision will come only after
a period of severe uncertainty for the government and hardship for the children af-
fected by the legislation. It is one thing for academics to propose a speculative new
theory and submit it to professional refutation, but quite another thing to experi-
ment with the rights of U.S. citizen children.
III. REASONS WHY THE CURRENT CITIZENSHIP RULE SHOULD BE RETAINED
The current rule of broad jus soli citizenship has many advantages that deserve
strong emphasis in evaluating the desirabihty of change. These include advantages
for U.S. society as a whole, and advantages for all native-bom citizens, as well as
the advantage of protecting the children who gain citizenship by the breadth of the
rule.
The realities that the jus soli rule addresses also deserve emphasis. Changing the
citizenship rule would not remove the children of illegal alien parents from the
United States. Nor would it make any substantial contribution to the enforcement
of the immigration laws. Whatever the citizenship rule may be, many thousands of
these children will remain in the United States, because the U.S. government will
not want to expend the resources necessary to find, process and remove them and
their parents. Given that so many of them will remain, the United States benefits
greatly by recognizing them as citizens.
A The social benefits of unity
One benefit that the United States derives fi^m the breadth of its jus soli rule
is the benefit that the Framers of that rule intended — ^the United States population
does not include a caste of hereditary aliens. One need only compare the situation
in European countries that have refused citizenship to multiple generations of for-
eign "guestworkers" to gain insight into the tragedies we are avoiding. Professor
David Martin (now General Counsel of the INS) made this point tellingly in his re-
view of the Schuck and Smith book:
"We have no European-style 'second generation problem' here, in part because we
cemnot have second generation aliens. * * * [if the children] stay here, a secvu-e
citizenship status forms a basic foundation for the shaping of identity and involve-
ment in the pohty. They are thereby encouraged to embrace Ufe here as fiill partici-
pants, not as half-hearted, standoffish 'guests.' Equally important, other citizens are
induced to treat them as coequal members of the polity, not as intruders who stay
too long." s
The assimilative advantages of birthright citizenship forestall social conflict.
Those who worry about the "disuniting" of America shoiild be the last to favor the
creation of a hereditary caste of ahen residents.
that, although lawyers have often succumbed to the myth that there was no immigration law
before the Civil War, professional historians have been aware that such law did exist.
''I will not devote space here to another historical error in the book the misinterpretation of
the 18th Century Swiss author Jean Jacques Burlamaqui. This error provides another weak link
in the book's £u-gument, but explaining its significance would unduly trespass on the Commit-
tee's time.
^ Martin, supra note 4, at 283-84.
110
B. The advantages to other native-born citizens
The bright-line character of the jus soli rule protects all persons bom in the Unit-
ed States, including the children of U.S. citizens. At present, proof of citizenship re-
duces to proof of place of birth, a fact that a genuine birth certificate can rehably
evidence. Adults who were bom in the United States do not find themselves csJled
upon to demonstrate the immigration status of their parents at the time of their
birth, or of their grandparents at the time of their parents' birth. Such genealogical
inquiries would become routinely necessary if the jus soli rule were modified, as
thev are necessary in countries that base citizenship on descent.
The substitute rules proposed in the bills and joint resolutions vary in the com-
plexity of their criteria for citizenship. Under some versions, both the immigration
status and the place of residence of the parents matter. Under some versions, any
lawful status of the parents suffices, wnile under others, only particular lawful
statuses suffice. H.J. Res. 93 adds conditions concerning the time of the parents'
entry.
It is difficult to imagine how such determinations could be made reliably by hos-
pital personnel at the time of birth. Even if supporting documents were always
available, deciding from a complex fact situation wnether an alien was in lawful sta-
tus on a given day can become an extraordinarily difficult undertaking. In fact, pre-
sumably such contemporaneous determinations would not be conclusive, and citi-
zens might find their citizenship challenged because of defective government records
decades after memories had faded and witnesses had died.
Perhaps these problems could be handled by establishing a centralized nationwide
registry of personal status and a national identity card. The United States has tra-
ditionally avoided such a system, associating it with police state.
C. The benefits of protecting the children of illegal aliens
Currently, the children bom to illegal, parents in the United States become citi-
zens at birth. This citizenship does not prevent the punishment or deportation . of
their parents, but it insulates the children from some of the dangers oi illegal sta-
tus. Since the children cannot help being bom here, and are obviously not to blame
for their parents' transgressions, this insulation is highly appropriate. At a mini-
mum, the children should not be denied citizenship without being given compensat-
ing protections for their human rights.
The present proposals are therefore incomplete. They deny the children the status
of citizenship, but they establish no compensating protection for the children.^
Turning innocent children into hereditary illegal aliens would blight their lives se-
verely. As the courts have recognized, illegal aliens '"are virtually defenseless
against any abuse, exploitation, or callous neglect to which the state or the state's
natural citizens and business organizations may wish to subject them.'" Plyler v.
Doe, 457 U.S. 202, 219 n.l8 (1982) (quoting Doe v. Plyler, 458 F. Supp. 569, 585
(E.D. Tex. 1978)). The continuous threat of deportation inhibits illegal aliens from
seeking the protection of the law; that is, of course, a major part of their attraction
for unscrupulous employers.^*' Nor is the law generous in compensating for their
vulnerability. The current trend is toward broad disqualification of illegal aliens
from benefits and services available to the general populace. States may not have
the power to do this without federal authorization, but the courts are likely to defer
to nearly any disqualification that Congress shoiild choose to enact. Although the
Supreme Court prevented Texas from excluding illegal alien children from its
schools is Plyler, even there it suggested that it woiild have applied a different
standard of review if Congress had authorized the exclusion. 457 U.S. at 225-26.
California's Proposition 187 attempts (thus far, unsuccessfully) to bar illegal alien
children from education, health care, and even from state intervention to protect
them fi-om child abuse.
Whatever the vagaries of future legislation, the Citizenship Clause guarantees
that native-bom children will not suffer such comprehensive deprivation on account
of their parentage. Nor can such disabilities become heredity. As their discussion
^In fact, the proposals are radically incomplete in another sense: having withdrawn one sta-
tus, they do not specify what the children's status will be instead. I assume that most pro-
ponents of change contemplate that the children of illegal aliens will also be illegal aliens, and
deportable as such. This would not necessarily follow from the current proposals. There is no
deportation ground in the current statute that covers the case of persons born as aliens in the
United States, because they have never entered and have broken no laws. For this reason, chil-
dren bom in the United States to foreign diplomats are considered lawful permanent residents.
See Nikoi v. Attorney General, 939 F.2d 1065 (D.C. Cir. 1991); Matter of Huang, 11 I. & N.
Dec. 190 (Reg. Conmi. 1965).
10 See Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented
Worker Under United States Law, 1988 Wis. L. Rev. 955, 992-97, 1003-04.
Ill
of the Chinese on the West Coast demonstrates, the Framers of the Foxirteenth
Amendment perceived that avoidance of such harms was an issue of constitutional
dimension, which should not be dependent on temporary shifts in public opinion.
Finally, mention should also be made of a special category of children: those who
would otherwise be stateless. Another benefit of the Citizenship Clause has been
that no children are born stateless in the United States. No special provision has
been needed to accomplish this.^^ If the jus soli rule were modified, then children
bom to stateless parents, or children bom to parents whose nationality would not
descend to them under foreign law, would have no country of their own. Pro^nsion
would have to be made to avoid this consequence. ^2
D. The benefits of protecting children of temporarily admitted aliens
Some of the proposals would limit U.S. citizenship to children of citizens and
"legal residents, ' and some others would limit U.S. citizenship to children of citizens
and "permanent residents aliens." The elimination of citizenship for children of
other lawfully present aliens therefore requires brief attention.
H.R. 1363, which limits citizenship to the children of "permanent resident aliens,"
illustrates the problem. Permanent resident aliens are only one category of the
ahens who are permitted to reside in the United States indefinitely. Lawful alien
residents also include asylees, parolees, aliens whose deportation has been withheld,
or other recipients of discretionary relief This formula would permit Congress to de-
termine the citizenship status of an alien resident's descendants by controlling the
alien's status label. It therefore possesses enormous potential for the creation of cat-
egories of hereditary alien inhabitants.
The alternative formula, "legal resident," might or might not create the same
problem, depending on how it would be interpreted. For example, under a temporary
workers' program that authorized alien workers to remain in the United States in
renewable one-year increments, one might conclude that the workers were not "resi-
dents." Such a program could replicate the guestworker system that has caused
such a dilemma in Europe.
Moreover, it is difficult to see why granting citizenship to children of temporarily
admitted aliens should be a subiect of controversy. Professors Schuck and Smith ob-
jected to these citizens, but wholly on theoretical grounds, and their theory has been
sharply criticized. During the period of the parents' lawfiil presence, the children
would be permitted to remain an5nvay, and the citizenship of the children creates
no substantial obstacle to removal of the parents when that period expires. There
is simply no social problem here justifying a constitutional amendment.
IV. FURTHER PROBLEMS RAISED BY PROPOSALS TO AMEND THE CITIZENSHIP CLAUSE
Aside from the merit of the existing citizenship rules, the current proposals raise
a number of problems of constitutional dimension. Some of these problems are spe-
cific to particular proposals, while others are common to all the proposals.
A Sex discrimination
Some of the proposals for new citizenship rules (H.R. 705, H.R. 1363, H.J. Res.
64) discriminate on grounds of sex, by making the citizenship of the child turn on
the status of the child's mother only. H.J. Res. 64 would actually write sex discrimi-
nation into the Constitution itself Children bom in the United States would only
be U.S. citizens if their mothers were "citizens or legal residents." This would be
objectionable in itself, and could have unforeseen consequences for constitutional in-
terpretation generally.
The Constitution is now essentially gender-neutral. There is an obsolete provision
in section 2 of the Fourteenth Amendment that reduced the representation of states
that disenfranchised male voters, thereby implying the propriety of disenfranchising
female voters. This implication has been superseded by the Nineteenth Amendment.
It would be highly offensive to write gender discrimination into section 1 of tiie
Fourteenth Amendment.
The lower courts have held that the pre- 1934 jus sanguinis rule, under which chil-
dren bom to U.S. citizen parents outside the United States were U.S. citizens only
if their fathers were U.S. citizens, denied the equal protection of the laws in viola-
tion of the Due Process Clause of the Fifth Amendment. See, e.g., Wauchope v. U.S.
Dep't of State, 985 F.2d 1407 (9th Cir. 1933); Elias v. U.S. Dep't of State, 721
F.Supp. 243 (N.D.Cal. 1989); cf. Pub. L. No. 103-416, § 101(a), 108 Stat. 4306 (pro-
i^But see 8 U.S.C.§ 1401(f) (presuming that children of unknown parentage found in the U.S.
before age five were bom in the U.S., in order to avoid statelessness).
12 The United States is internationally committed to respect the right of every child to acquire
a nationality, under Article 24(3) of the International Covenant on Civil and Political Rights.
112
viding a remedy for most such cases). H.J. Res. 64 would apply similar discrimina-
tion to children born within the United States, which is an even more egregious de-
nial of equality. As a later constitutional amendment, however, it would take legal
precedence over the equality guarantee of the Fifth Amendment.
The constitutional enshrinement of sex discrimination in citizenship law would le-
gitimate sex discrimination in a manner that might not be confined to the area of
citizenship. Constitutional interpretation proceeds by the inference of general prin-
ciples from the entire Constitution as well as by the narrow reading of specific pro-
visions. The proposed amendment might affect case law concerning the equal treat-
ment of fathers in other contexts, or sex discrimination more generally. In the long
term, such consequences of constitutional amendments are difficult to predict.
Moreover, the sex-discriminatory proposals exhibits disturbing inattention to the
realities of female immigration. Congress has previously displayed its awareness of
these realities, enacting several modifications of the immigration laws in recent
years to address problems of spousal abuse. See, e.g.. Pub. L. No. 103-322, §40701-
40703, 108 Stat. 1953-55 (1994). A substantial number of undocumented women are
deliberately kept undocximented by their citizen or lawful resident alien husbands
as a means of control. See Janet M. Calvo, Spouse-Based Immigration Laws: The
Legacies of Coverture, 28 San Diego L. Rev. 593 (1991). By specifically denying citi-
zenship to children bom in such marriages, H.J. Res. 64 would only increase the
opportunity for abuse.
B. Consequences of U.S. citizenship
Some of the proposals would repeal the Citizenship Clause or remove it fi-om the
Fourteenth Amendment. These proposals may have unintended consequences for the
rights of U.S. citizens generally, and may increase their vulnerability to involuntary
expatriation.
At present, the Citizenship Clause appears at the first sentence of the Fourteenth
Amendment, and prefaces a declaration of rights, including the prohibition against
a State's abridging the privileges or immunities of citizenship. The Citizenship
Clause is currently interpreted by the Supreme Court not only as defining who shall
receive citizenship, but providing some of the content of citizenship. In Afroyim v.
Rusk, 387 U.S. 253 (1967), Justice Hugo Black discussed the history of the adoption
of the Fourteenth Amendment as demonstrating that the citizenship that it guaran-
teed was not "a fleeting citizenship" but a permanent one, beyond tne power of Con-
gress to cancel by involuntary expatriation. This important right to the permanence
of citizenship, which the constitutions of some other countries set forth explicitly,
is deducted in the United States from the structure and history of the Fourteenth
Amendment.
Dismantling the Fourteenth Amendment may endanger the basis of this protec-
tion. If the Citizenship Clause is repealed and replaced by a separate article, then
the legislative history of the Fourteenth Amendment will no longer be controlling,
and the structural connection between the Citizenship Clause and other rights pro-
tections will be broken. The language and history of the new article may create a
new starting point for interpretation. The Congress should exercise great care that
essential rights of aU U.S. citizens are not sacrificed in the process.
C. Threat to other constitutional values
Section One of the Fourteenth Amendment is one of the central texts of the Unit-
ed States Constitution. It contains the Citizenship Clause, the Privileges or Immuni-
ties Clause, the Due Process Clause, and the Equal Protection Clause. The adoption
of this Amendment has been called a second American Revolution that perfected the
first American Revolution, by rejecting the legacy of slavery and racial inequality.
The Citizenship Clause, which overtiuned the Dred Scott decision, was an inte-
gral part of that process. It redefined the national identity of the United States as
ethnically inclusive. One could no longer say that the United States was a "white
man's country." Unlike in ethnically defined nations, U.S. citizenship is not a matter
of who your parents were. Being born in this land of freedom is enough.
Amending the Citizenship Clause would doubly attack that legacy. First, it would
set a precedent for the diminution of Fourteenth Amendment rights. The Congress
has observed a healthy inhibition against making amendments that cut back on the
original Bill of Rights, and a parallel hesitancy to cut back on the Fourteenth
Amendment is justified.
Second, amending the Citizenship Clause wovild amount to another redefinition
of the American national identity. Descent would receive new prominence; openness
and equality would be deemphasized. These proposals are not merely technical
changes to facilitate the enforcement of the immigration laws. They stake out con-
troversial positions on American national identity. It is no coincidence, for example.
113
that H.J. Res. 87 couples a change in the birthright citizenship rule with a constitu-
tional requirement of English proficiency for natm-alization. These positions should
be openly admitted and openly debated.
Perhaps the time has come for the United States to be like other nation-states.
I hope not, particularly in a decade when ethnic nationalism is resurgent globally.
But if so, it should be done with a fi-ank recognition of what we are giving up.
V. CONCLUSION
The purpose of this testimony is two-fold. First, it provides a legal analysis of con-
cessional power over citizenship in the absence of a constitutional amendment.
Congress has no power to enact the current proposals as ordinary legislation.
Second, this testimony attempts to identify some of the problems raised by the
proposals for constitutional amendpients. There is strong reason to believe that the
minor gains sought by the proponents of these amendments are outweighed by se-
vere disadvantages.
Mr. Canady. Thank you, Professor Neuman. Professor Erler.
STATEMENT OF PROF. EDWARD J. ERLER, POLITICAL
SCIENCE, CALIFORNIA STATE UNIVERSITY, SAN
BERNARDINO, AND SENIOR FELLOW, CLAREMONT INSTI-
TUTE FOR THE STUDY OF STATESMANSHIP AND POLITICAL
PHILOSOPHY
Mr. Erler. Thank you, Mr. Chairman, I believe that Congress
has the power under the Constitution to define by statute those
persons who are within or subject to the jurisdiction of the United
States. I believe Congress has in fact exercised that power on var-
ious occasions. So the proposal to deny birthright citizenship to the
children of illegal aliens would not be a new exercise of power on
the part of Congress.
Let me just start with the plain language of section 1 of the 14th
amendment. "All persons bom or naturalized in the United States
and subject to the jurisdiction thereof are citizens." There are two
requirements here. You must be bom in the United States, but you
also must be subject to the jurisdiction of the United States. If we
assume that all persons who are bom in the United States are
automatically subject to the jurisdiction of the United States, you
have rendered the jurisdiction clause superfluous.
I believe it is a principle of constitutional construction that you
cannot interpret the Constitution in any way that renders any
clause superfluous or without force or effect. This would be tanta-
mount to amending the Constitution.
I also believe that the intentions of the Kramers of the 14th
amendment are quite clear. Senator Lyman Trumbull, who was
chairman of the Senate Judiciary Committee, said what he believed
it meant to be within the jurisdiction of the United States or sub-
ject to the jurisdiction of the United States. He said it meant "not
owing allegiance to anybody else. It is only those persons who come
completely within our jurisdiction who are subject to our laws that
we think of making citizens, and there can be no objection to the
proposition that such persons should be citizens."
This of course was familiar language. It had already been used
in the Civil Rights Act of 1866, which had defined citizens of the
United States as all persons bom in the United States and not sub-
ject to any foreign power. So this idea that there was allegiance
necessary to be subject to the jurisdiction of the United States was
a familiar one. It was not all persons bom into the United States,
114
but all persons bom in the United States owning allegiance to the
United States. I think this is an important distinction.
Also, Senator Jacob Howard, who was the author of the citizen-
ship clause made a remark that should be decisive in this consider-
ation. It is a remark that Chairman Smith quoted earlier, but
bears repeating. He said that "every person born within the limits
of the United States and subject to their jurisdiction is by virtue
of natural law and national law a citizen of the United States. This
will not, he said, of course include persons bom in the United
States who are foreigners, aliens, who belong to the families of am-
bassadors or foreign ministers accredited to the Government of the
United States. So clearly, the author of the citizenship clause in-
tended to count children born in the United States to foreigners,
aliens and ambassadors of foreign ministers as outside the jurisdic-
tion of the United States, because owing no allegiance to the
United States."
Now one other thing. That is, there was a debate at the time of
the proposing of the 14th amendment about whether or not the
first section of the 14th amendment would include Indians as citi-
zens of the United States. Everyone agreed that it would not, that
Indians would not become citizens of the United States by virtue
of the passage of the 14th amendment because they were not sub-
ject to the jurisdiction of the United States. Members of Indian
tribes owed allegiance to their tribes, and therefore, didn't owe alle-
giance to the United States.
In 1870, the Senate Judiciary Committee published a report that
addressed this question of whether the 14th amendment had made
Indians citizens. The report's emphatic conclusion was that it had
not, and that Indians were not citizens or made citizens because
they were not subject to the jurisdiction of the United States. This
seems to be clear and everyone seems to have agreed on this point.
What happened, however, was that various pieces of legislation
passed by Congress extended the jurisdiction of the United States
to various Indian tribes beginning in 1870 and thereafter. Several
pieces of legislation were passed inviting members of various In-
dian tribes to become citizens of the United States, and in effect,
extended the jurisdiction of the United States to those tribes. In
1924 of course, there was general legislation passed that brought
all Indians bom in the United States within the jurisdiction of the
United States.
The idea here is that citizenship is based upon consent, not just
the consent of the community or the consent of the Government,
but reciprocal consent. No person can become a citizen of the
United States without his consent, nor can any person become a
citizen of the United States without the consent of the nation.
I think just one last point. It seems to me that there is positive
proof that the Framers of the 14th amendment did not adopt birth-
right citizenship when they passed the 14th amendment. This is
the fact that they also in 1868, the same year that the amendment
was ratified, passed an expatriation law which allowed any citizen
of the United States to renounce his citizenship and put himself
outside the jurisdiction of the United States. Under any notion of
birthright citizenship, that would be impossible, because once you
115
incur obligations to the sovereign under birthright citizenship, you
owe fealty or allegiance forever. Thank you.
[The prepared statement of Mr. Erler follows:]
Prepared Statement of Prof. Edward J. Erler, Political Science, California
State University, San Bernardino, and Senior Fellow, Claremont Insti-
tute FOR the Study of Statesmanship and Political Philosophy
The evidence is incontrovertible that not all persons bom in the United States are
within the jurisdiction of the United States and that Congress under section five
of the Fourteenth Amendment has the power to define the jurisdiction of the United
States. It is my considered opinion that the "Citizenship Reform Act of 1995" is a
proper exercise of Congressional power.
The immediate purpose of the citizenship clause of the Fourteenth Amendment
was to overturn the infamous Dred Scott decision of 1857 which had proclaimed all
blacks of African descent to be ineligible for citizenship. The fatal defect in the rea-
soning of Dred Scott was its denial that blacks of African descent were included in
the founding principle of the Declaration of Independence that "all men are created
equal." It is the principle of equality that makes the consent of the governed the
necessary foundation of legitimate government. Without consent, rule is based mere-
ly on force. But of course slavery is based on force rather than consent — hence its
illegitimacy and its injustice. Consent — the reciprocal consent of the social con-
tract— ^is also the necessary foundation of citizenship. Prior to the Fourteenth
Amendment, Federal citizenship was an incident of State citizenship; every citizen
of a State was, by virtue of that citizenship, automatically a citizen of the United
States. The Fourteenth Amendment reversed that relationship and reconfirmed the
consensual basis for citizenship that had been read out of the Constitution by the
Dred Scott decision.
There seems to be agreement on all sides that the princip£il object for the Four-
teenth Amendment was to seciu-e Federal citizenship for the newly freed slaves and
extend to them the whole panoply of civil rights that are the necessary incidents
of Federal citizenship. In order to forestall attacks upon the citizenship of former
slaves, the framers of the Fourteenth Amendment made Federal citizenship primary
and State citizenship derivative, so that any person who saw a citizen of the United
States was automatically a citizen of the State wherein he resided. This made it im-
possible for the State to circumvent Federal protection for civil rights by withhold-
ing State citizenship from the former slaves and thus preventing them from becom-
ing citizens of the United States.
Even though it is clear that the Fourteenth Amendment was passed principally
to settle the question of the citizenship of the newly freed slaves, today the phrase
"All persons bom or naturalized in the United States" is almost universally under-
stood to confer citizenship upon all persons who are bom in the United States re-
gardless of whether they are legally in the country or not. But being bom in the
United States only compromises one part of the two part requirement of citizenship.
The second part requires that a person bom in the United States must also be "sub-
ject to the jurisdiction" of the United States.
What is the meaning of this subordinate clause in the first sentence of the Four-
teenth Amendment? It is clear that, whatever else it means, the phrase was in-
tended to limit or qualify "All persons bom or naturalized * * *" Only those persons
"bom or naturalized" and "subject to the jurisdiction" of the United States are citi-
zens of the United States. Thus, the phrase clearly does not have universal applica-
tion. To assimie, as many today do, that all persons bom in the United States are
automatically subject to flie jurisdiction of the United States by virtue of their birth
would render the jurisdiction clause superfluous. But no interpretation can render
any part of the Constitution superfluous or leave any provision without force. This
is a necessary consequence of a written constitution. Any interpretation that ren-
dered a provision of the Constitution superfluous woiUd be tantamount to an
amendment of the Constitution itself.
The legislative debates decisively demonstrate that both clauses of the first sec-
tion of the Fourteenth Amendment were intended to have independent force. The
first definition of citizen to make its appearance in the Fourteenth Amendment was
put forward by Senator Benjamin F. Wade on May 23, 1866. It simply included "all
persons bom in the United States or naturalized by the laws thereof." ^ Senator
Jacob Howard offered a substitute which added the jurisdiction clause: "All persons
bom in the United States and subject to the jurisdiction thereof are citizens of the
1 Congressional Globe, 39th Cong., 1st Sess., 2769 (May 23, 1866).
116
United States and of the States wherein they reside." ^ This substitute was inspired,
in part, by the objection made by Senator William Fessenden that Wade's definition
would have included as citizens children bom to diplomats residing in the United
States. Howard later inserted "or naturaUzed" after "born," bringing the clause to
its final form.3 It is thus beyond cavil that the jurisdiction clause was meant to be
a limitation on "all persons."
Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee and a
powerful supporter of the Fourteenth Amendment, remarked on May 30, 1866, that
the jurisdiction clause refers to those "Not owing allegiance to anybody else * * *
it is only those persons who come completely witmn our jurisdiction, who are subject
to our laws, that we think of making citizens; and there can be no objection to the
proposition that such persons should be citizens." ^
This, of course, was famiUar language. The Civil Rights Act of 1866 had defined
citizens of the United States as "all persons bom in the United States, and not sub-
ject to any foreign power excluding Indians not taxed." It is universally agreed that
the immediate impulse for the passage of the Fourteenth Amendment was to con-
stitutionahze the Civil Rights Act of 1866. This was an attempt to put the question
of citizenship and matters of Federal civil rights beyond the reach of simple congres-
sional majorities. Thus it is clear that the idea of allegiance ("not subject to any for-
eign power") was somehow central to understanding the jurisdiction clause of the
Fourteenth Amendment.
Senator Jacob Howard, the author of the citizenship clause, made the most pre-
cise statement about the character of the limitation contained in the jurisdiction
clause:
"[E]very person bom within the limits of the United States, and subject to their
jurisdiction, is by virtue of natural law and national law a citizen of the United
States. This will not, of course, include persons bom in the United States who are
foreigners, aliens, who belong to the famiUes of ambassadors or foreign ministers
accredited to the Government of the United States, but will in'-lude every other
class of persons. It settles the great question of citizenship and removes all doubt
as to what persons are or are not citizens of the United States. This has long been
a great desideratum in the jvirisprudence and legislation of this country." ^
Clearly, the author of the citizenship clause intended to count children bom in
the United States to "foreigners," "aUens," and "ambassadors or foreign ministers"
as outside the "jurisdiction of the United States."
But perhaps just as revealing is the fact that Howard refers both to "natural law"
and "national law." As Howard surely knew, citizenship based on natural law meant
that no person could be governed — or become a citizen — without his consent. This
was the natural law principle of the Declaration of Independence that proclaimed
that legitimate governments derive "their just powers from the consent of the gov-
erned." As Thaddeus Stevens, a leading Radical Republican and member of the
Joint Committee on Reconstruction, remarked before the House on May 8, 1866, re-
marked:
"Our fathers had been compelled to postpone the principles of their great Declara-
tion, and wait for their full establishment till a more propitious time. That time
ought to be present now." ^
It is certainly true that just or legitimate government requires the unanimous
consent of each and every individual who is to be governed whether that consent
is given explicitly or tacitly. The foundation of community based on the consent of
the governed is the social contract. The common understanding of these foundations
during the founding era was expressed in the Massachusetts Bill of Rights (1780):
"The end of the Institution, maintenance, and administration of government, is
to secure the existence of the body-politic, to protect it, and to furnish the individ-
uals who compose it with the power of enjoying in safety and tranquillity their natu-
ral rights * ♦ * and whenever these great objects are not obtained, the people have
a right to alter the government. * ♦ * The body-politic is formed by a voluntary as-
sociation of individuals; it is a social compact by which the whole people covenants
with each citizen and each citizen wiA the whole people that all shall be g;ovemed
by certain laws for the common good. It is the duty of the people, therefore, in fram-
2 Id., at 2869 (May 29, 1866).
3 Id., at 3040 (June 8, 1866).
4 Id., at 2893 (May 30, 1866).
5 Id., at 2890, See SlaughterHouse cases, 83 U.S. 36, 73 (1873) where Justice Samuel Miller,
writing for the majority, noted that "[t]he phrase 'subject to its Jurisdiction' was intended to ex-
clude from its operation children of ministers, consuls and citizens or subjects of foreign states
bom within the United States."
61d., at2459.
117
ing a constitution of government, to provide for an equitable mode of making laws,
as well as for an impartial interpretation and a faithful execution of them; that
every man may, at all times, find his security in them."
Thus, the social contract requires reciprocal consent. Not only must the individual
consent to be governed, but he mvist also be accepted by the community as a whole.
If all persons bom within the geographical limits of the United States are to be
counted citizens — even those whose parents are in the United States illegally — ^then
this would be tantamount to the conferral of citizenship without the consent of "the
whole people."
But if the natviral law requirements of citizenship mean anything, it must surely
mean that consent must be reciprocal — allegiance on the part of those who seek to
become citizens and the consent of the nation. Any contract requires at least two
parties; there can be no contract that binds someone who has not been party to the
contract. Any reasonable person would have to agree that "subject to the jurisdiction
of the United States" means those who are within the geographical limits of the
country legally — that is with the permission of the United States. Indeed, on at least
one occasion the Supreme Court rightly noted that the jurisdiction requirement of
the Fourteenth Amendment embodied ' the principle that no one can become a citi-
zen of a nation without its consent."'' The jurisdiction clause of the Fourteenth
Amendment, as Howard noted, is truly the ' national law" confirming or codifying
the "natural law."
Much of the debate about the jurisdiction clause in the Congress centered on the
status of Indians. The immediate question was whether the Fourteenth Amendment
would confer citizenship upon the Indians as well as upon the newly fi-eed slaves.
The former slaves, of course, had been bom in the United States and had always
been subject to its jurisdiction. Was the same true of Indians? Indians were surely
bom in the United States, but were they subject to its jurisdiction in the sense of
"[n]ot owing allegiance to anybody else? Senator Trumbull noted that "[t]he provi-
sion * * * that 'all persons bom in the United States, and subject to the jurisdiction
thereof, are citizens' * * * means subject to the complete jurisdiction thereof"
Trumbvdl proceeded to deny that Indians were "in any sense subject to the complete
jurisdiction of the United States. * * * We make treaties with them, and therefore
they are not subject to our jurisdiction. * * * It cannot be said of any Indian who
owes allegiance, partial allegiance if you please, to some other Government that he
is 'subject to the jurisdiction of the United States'." ^ The author of the citizenship
clause, Senator Howard, emphatically agreed with Trumbull's assessment that Indi-
ans would not become citizens of the United States as a result of the passage of
the Fourteenth Amendment.
"The word 'jurisdiction,' as here employed, ought to be construed so as to imply
a full and complete jurisdiction on the part of the United States, coextensive in aU
respects with the constitutional power of the United States, whether exercised by
Congress, by the executive, or by the judicial department; that is to say, the same
jvirisdiction in extent and quality as applies to every citizen of the United States
now. Certainly, gentlemen cannot contend that an Indian belonging to a tribe al-
though bom witWn the limits of a State, is subject to this full and complete jurisdic-
tion.'^s
Clearly, insofar as Indians owed tribal allegiance they were not within jvuisdiction
of the United States, even though there were bom within its territorial limits and
in many instances subject to its laws. It is important to note here that jurisdiction
does not mean simply subject to the laws of the United States. Rather, it refers spe-
cifically to "political jurisdiction" in the sense of allegiance. Aliens in the United
States are properly subject to the laws of the United States and the jurisdiction of
its courts; but this is not the same as owning allegiance to the United States. Aliens
subject to the laws of the United States still owe allegiance to another country and
are thus not within the political jurisdiction of the United States — the only jurisdic-
tion contemplated by the Fourteenth Amendment.
In 1870, the Senate directed the Judiciary Committee to "report to the Senate the
effect of the fourteenth amendment to the Constitution upon the Indian tribes of the
country; and whether by the provisions thereof the Indians are not citizens of the
United States." The Committee report noted that "[t]he inference is irresistible that
the amendment was intended to recognize the change in the status of the former
slave which had been effected during the war, while it recognizes no change in the
status of tJie Indians. The Report's conclusion was unequivocal: "those who framed
the fourteenth amendment, and the Congress which proposed it, as well as the legis-
''Elk V. WUkins, 112 U.S. 94, 103 (1884).
8 Congressional Globe, 39th Cong., 1st Sess., 2893 (1866).
»Id., at2895.
118
latures which adopted it, understood that the Indian tribes were not made citizens,
but were excluded by the restricting phrase, "and subject to the jurisdiction," and
that such has been the universal understanding of all our public men since the
amendment became a part of the Constitution. ^^
Thus, it seems to be beyond doubt that the jurisdiction clause of the fourteenth
amendment was intended by its framers to have independent force; not all persons
bom in the geographical limits of the United States are within the jurisdiction of
the United States. To be within the jurisdiction of the United States means to be
within its political jurisdiction.
As the Supreme Court said in Elk v. Wilkins (1884), "[t]he evident meaning of
[the jurisdiction clause] is, not merely subject in some respect or degree to the juris-
diction of the United States, but completely, subject to their political jurisdiction
and owing them direct and immediate allegiance * * * Indians, bom within the ter-
ritorial limits of the United States, members of and owing immediate allegiance to
one of the Indian Tribes, an alien though dependent power, although in a geographi-
cal sense bom in the United States, are no more bom in the United States and sub-
ject to the jurisdiction thereof * * ♦ than the children of subjects of any foreign gov-
ernment bom within the domain of that government; or the children, born within
the United States, of ambassadors or other public ministers of foreign Nations." ^^
In this case, Elk had renounced his tribal allegiance and had lived for some years
apart from the tribe. But the Court was adamant that the ascription of citizenship
could not be a unilateral or self-selected act. "The alien and dependent condition of
the members of the Indian Tribes could not be put off at their own will, without
the action or assent of the United States" signified either by treaty or legislation. *2
Neither "the Indian Tribes" nor "Individual members of those Tribes," no more than
"other foreigners" can "become citizens of their own will." ^^ it must be emphasized
that no individual can be made a citizen against his will or, that is, without his con-
sent. Yet, self-selected citizenship is not enough; it must be ratified by those who
are already members of the political community.
The Court in Elk noted that several congressional acts had been passed subse-
quent to the Fourteenth Amendment to bring various tribes within the jurisdiction
of the United States, acts "which would have oeen superfluous if they were or might
become, without any action of the government, citizens of the United States." ^^ In
this regard, the Court mentions the "Act of July 15, 1870," extending the jurisdic-
tion of the United States to any member of the Winnebago tribe who desired to be-
come a citizen. A similar act was passed on March 3, 1873, extending jurisdiction
to members of" the Miami Tribe of Kansas. Indeed, this was the method used by
Congress — exercising its section 5 powers to enforce the provisions of the Fourteenth
Amendment — to bring various members of Indian tribes within the jurisdiction of
the United States. General legislation was passed, of course, in the Indian Citizen-
ship Act of 1924 which provided that "all non-citizen Indians bom within the terri-
torial limits of the United States be, and they are hereby, declared to be citizens
of the United States." ^^ Thus, Congress has a long history of exercising its Section
5 powers to define who falls within the jurisdiction of the United States. The "Citi-
zenship Reform Act of 1995" is precisely the same exercise of congressional power.
Allowing children of illegal aliens to become citizens at birth permits the creation
of citizens without the permission of the nation. It is the same notion of self-selected
citizenship that was always disallowed in the case of Native Americans. A sovereign
nation must, at a minimum, have plenary power to determine who will become citi-
zens. In the absence of automatic citizenship for children bom to illegal aliens, their
citizenship would follow the citizenship of their parents — or be determined by the
laws of the country in which the parents hold citizenship. The fact that illegal aliens
have violated laws of the United States precludes any possibility that they can be
properly said to be within the jurisdiction of the United States as the aliens surely
have demonstrated that they do not believe themselves to be subject to the laws of
the United States, or only partially subject. It would, of course, be a different matter
for the children born of legal aliens who have been admitted by the laws of the Unit-
ed States. Whether their children would be citizens at birth or upon the attainment
of citizenship of the parents would be a matter for Congress to determine. There
has never been a Supreme Court opinion holding that the children of illegal aliens
»« Senate Report No. 268, 41st Cong., 3rd Sess (1870), at 10.
"£ZA V. Wilkins, at 102.
12 Id., at 99.
13 Id., at 101.
14 Id., at 104.
15 "Documents of United States Indian Policy," 2nd ed. revised, Frances Paul Prucha, ed. (Lin-
coln: University of Nebraska Press, 1990), at 218.
119
are entitled to American citizenship by virtue of their birth within the geographicsd
limits of the United States. In the case of United States v. Wong Kim Ark (169 U.S.
649 [1898]), the Court held that a child of legal aliens— even though they were ren-
dered ineligible for citizenship by both statutes and treaty and maintained alle-
giance to their country of birth — was a citizen. The "Citizenship Reform Act of 1995"
would not trench upon this decision in any way. There are no case law precedents
that indicate in any manner that this act woudd violate the Constitution or is be-
yond the powers of Congress.
No constitutional amendment is required to deny automatic citizenship to children
of illegal aliens. Indeed, statutory solutions are always preferable to constitutional
amendment simply because the organic law of the nation should be changed as little
as possible and only for the most grave and compelling reasons. Since Congress has
plenary power "to establish an uniform Rule of Naturalization" and to determine
who is "within the jurisdiction of the United States," no constitutional amendment
is needed or desirable.
The argument for birth-right citizenship is, of course, more suitable to feudalism
than it is to republicanism or democracy. Under the feudal concept of citizenship,
anyone bom under the protection of the sovereign owed perpetual allegiance or fe-
alty to the sovereign. It is hardly credible that the framers of the American Con-
stitution or the framers of the Fourteenth Amendment would have contemplated a
basis for citizenship that had its origins in the feudal regime. Indeed, the great ob-
ject of the American Revolution was to replace the feudal regime with one based
on "the consent of the governed." In basing citizenship on the consent of the gov-
erned, the framers of the Constitution placed the rights and obligations of citizen-
ship on an entirely new — and democratic — basis. Indeed, the consensual basis for
citizenship, so far from creating a permanent and indissoluble allegiance to the sov-
ereign, msiintains the general right of expatriation. The Reconstruction Congress
understood the necessity of reciprocal consent in establishing citizenship when it
passed the Expatriation Act of 1868 — an Act contemporaneous with the ratification
of the Fourteenth Amendment — ^which proclaimed the natural and inherent right of
individuals to withdraw from the country of their birth. This Act conclusively dem-
onstrates that the notion of citizenship that informed the Reconstruction Congress
was not birth-right citizenship. ^^ Birth-right citizenship does not allow for expatria-
tion; under birth-right citizenship the obligations created by the accidents of birth
are indissoluble. It is unimaginable that the framers of the Fourteenth Amendment,
who looked upon their handiwork as a great act of liberation for the newly freed
slaves, could nave intended to resurrect the feudal notion of birth-right citizenship
in the citizenship clause of the Fourteenth Amendment.
Mr. Canady. Thank you, Professor. Ms. Jauregui Alcantar.
STATEMENT OF EMILY JAUREGUI ALCANTAR, FORMER
REPORTER, EL PASO TIMES
Ms. Jauregui Alcantar. My name is Emily Jauregui Alcantar.
I am a former reporter with the El Paso Times. Let me start by
telling you that this was one of the most difficult stories that I had
to write in my 7 years as a reporter. That is to say something, be-
cause I covered some big ones, including the war in Chiapas, Mex-
ico. The reason that it was so difficult was because I wrote this
story while I was 8 months pregnant with my second child. It in-
volved illegal immigration of Mexican women. I am a first genera-
tion American of Mexican descent. My parents are immigrants to
this country from Mexico. What I found was very disturbing.
Basically, what happened was when I was eight months preg-
nant I was in Juarez, Mexico, which is our sister city. I am from
El Paso, TX, and Juarez, Mexico, is our sister city. They are very
close together. They touch each other divided only by the Rio
Grande and the international bridges. When I was in Juarez doing
another story, I came upon this story of illegal immigration and
Mexican women having children in the United States.
i«See Congressional Globe, 39th Cong. 1st Bess, at 2969.
120
Basically, as I was on the bridge, I stari;ed getting offers from
Mexican nationals who called themselves coyotes, or people smug-
glers, to cross me illegally into the United States and deliver me
to the county hospital so I could have my child as an American citi-
zen and be able to tap into the U.S. welfare system. I was intrigued
by what I was being told, so I went back to the newsroom and I
told of my experiences to the editors. After some convincing, we de-
cided that I would go undercover and pursue the story and see
what would happen. We were going to research and see if it was
true that a Mexican national could secure benefits without any
type of identification and have an American baby.
So I went back to the bridge and I pretended to be a Mexican
national. It was very easy for me to do since I'm a first generation
American, my Spanish is very good. I discovered that it took as lit-
tle as $3 to be waded across the river on a raft. From there, it
would take $20 to be delivered to the hospital. Once I arrived at
the county hospital, they didn't require any type of identification.
I got help from the other Mexican women who were there to deliver
babies. They basically told me that all I needed was a notarized let-
ter from someone attesting to the fact that I lived in their home.
This was very easy to do because I write under my maiden name,
so my husband wrote a letter saying that I lived in his home, and
I cooked and cleaned, which was technically correct. [Laughter.]
That's how we were able to do it. Once I got to the hospital, it
took as little as 15 minutes to register to have my baby. I was
never asked if I was a U.S. citizen. I could have had my baby,
which cost about $1,700, for free.
What was amazing to me was that I got all the information from
the women at the hospital. I didn't come across a single one who
was a legal resident, well, one was here legally now, but she first
came to the United States as an illegal immigrant. But all of the
women who were at the El Paso County Hospital were from Mex-
ico.
What was shocking is that most of them were not there illegally.
They didn't go, like I did, across the river illegally to have their ba-
bies. They used their shopping visas to enter the country, because
with these shopping visas, you can enter the United States for 72
hours. So what they do is they come across as though they were
shopping. Instead they would go to their doctor's appointment at
the county hospital. Then when it was getting close to their due
date they come to El Paso, see El Paso and Juarez are so close that
you have family in Juarez and in El Paso. So the week they were
due, they would go to their family in El Paso. They would stay
there a week. When it was time to give birth, they would go the
hospital and have their baby. From there, they used the same ad-
dress to secure the welfare benefits. That's basically where the
checks go. But a lot of these women live in Mexico. They live in
Juarez. They don't live in El Paso. So once a month, they go and
they pick up their benefits. They go back to Juarez to their home
and they buy groceries and things of this nature.
Like I said, this is such a difficult story for me to write because
prior to this story I never understood the issue. Being a first gen-
eration American, because my parents have never had welfare ben-
efits and they were very hard working, I always thought, what's
121
the big deal? You know, why are Hispanics — in El Paso, about 70
percent of the population is Hispanic — so divided. This issue has
divided us. A lot of Hispanics feel that we should close the borders
and not let anybody else in, now that we're here. Then one-third
of the Hispanics feel no, no. It's not right. We shouldn't have bor-
ders. Anybody should be able to make it wherever they want to
make it. Then the other third feel kind of like in between, you
know, we should allow immigrants but we shouldn't allow them ac-
cess to welfare, the first generation or so.
I think that's basically where I stand, because after what I saw,
I realized that it's the welfare benefits that are costing such a bad
anti-immigrant sentiment, in my opinion. Because I feel that a lot
of people feel that immigrants just want to come here for the bene-
fits. I don't think that's right. I got a lot of bad comments from my
fellow Hispanics when I wrote the story, but I think people should
know that this is huge. This is bigger than people realize, unless
you live on the border, some of the abuses that are going on as far
as welfare are hard to understand.
[The prepared statement of Ms. Jauregui Alcantar follows:]
Prepared Statement of Emily Jauregui Alcantar, Former Reporter, El Paso
Times
My name is Emily Jauregui Alcantar. I am 31 years old, a resident of El Paso,
Texas — near the U.S./Mexico border.
What I am about to testify to is information that I discovered as a reporter for
the El Paso Times newspaper, when in 1993 I posed as an illegal immigrant from
Mexico to docvunent how easy it was to secure welfare benefits from the United
States.
Although my experience centers around the U.S.-Mexico border area of El Paso,
it is my understanding that illegal immigrants from countries all over the world are
tapping into the U.S. welfare system. As a result, many Americans are debating
whether it is a good idea to continue the policy of automatic citizenship for any per-
son bom on U.S. soil.
For years, Americans have complained about the high cost of providing benefits
to illegal immigrants. Complaints are common along the El Paso border, where resi-
dents get a closer glimpse of some of the tax-related abuses that can occur.
Personally, I never understood the issue until I went undercover for my story. I
didn't really have much of an opinion about the issue.
To understand my report, you must be familiar with the border area of El Paso,
Texas and Juarez, Chihuahua, Mexico.
El Paso and Juarez are true sister cities. The cities are separated only by the Rio
Grande and a couple of international bridges.
In June of 1993, while eight months pregnant, I was across the border in Juarez,
Mexico working on a project when I stumbled on a story about the U.S. welfare sys-
tem and illegal immigration.
Much of my story was based on the simplicity of entering the United States ille-
gally to have my baby free of charge in the United States. Since my story, it's no
longer so easy to enter the United States because of "Operation Hold the Line,"
which was initiated by the U.S. Border Patrol in the El Paso area. Under "Oper-
ation Hold the Line," agents now concentrate efforts on guarding the border. Prior
to this new policy, border patrol agents were scattered throughout the city of El
Paso, often apprehending illegal immigrants after they were inside the United
States.
However, "Operation Hold the Line" does not mean non-U.S. residents have
stopped tapping into the American welfare system or have stopped having babies
in the United States to secure coveted U.S. citizenship rights.
When I did my news article two years ago, it took as little as $3 to $20 to enter
the United States from Mexico illegally to have my baby free of cost at the El Paso
county hospital, compliments unwiUing of U.S. taxpayers.
However, in my reporting, I discovered that most of the other pregnant women
I encountered at the county hospital in El Paso weren't even having to enter the
country illegally to give birth to American babies. Instead, they used their tern-
122
porary shopping visas to enter the United States, make doctor visits and deUver
their babies in El Paso.
I think it is fair to say that many Mexican women — particularly the wealthy —
don't give birth in El Paso at the expense of U.S. taxpayers. Some of the Mexican
women pay for private doctors and private hospitals, while other women (such as
one of the women in my news story) pay for less expensive midwives when they give
birth in the United States.
But my story was about the many Mexican women who use the county hospital
in El Pascf to give birth to their children at the expense of El Paso taxpayers.
In Mexico, it is no secret that it is easy to secure U.S. welfare benefits, without
U.S. citizenship, particularly if you have an American-born child.
All that is needed is an address inside El Paso county, something that is easy to
obtain, since most Juarenses have relatives or friends in El Paso.
My experience began with several men who approached me as I stood on the
Mexican side of the international bridge into El Paso one day in May of 1993.
The people smugglers, who called themselves "coyotes," on the Mexican side of the
international bridge apparently made their living crossing Mexicans illegally into El
Paso. As a pregnant woman, the coyotes assured me they could smuggle me into
the United States and deliver me to the local county hospital, where I could have
my baby free of charge.
As an added bonus, the smugglers praised the benefits of having an American-
bom baby. There could be welfare payments, public housing, public education, and
even free milk, orange juice and peanut butter to feed on under the U.S. WIC —
Women, Infants and Children program.
Intrigued by what I heard, I went back to the newspaper, where I talked about
my experience and convinced the editors that this story was worth pursuing.
Days later, I retiirned to Juarez to do the story and began to walk across the
international bridge into El Paso. Once again, several men approached me with
promises to cross me into El Paso. Their promises seemed to hold true. I stood at
the bridge and watched them smuggle dozens of people into El Paso.
It was as simple as waiting around until the U.S. Border Patrol truck was filled
with illegal aliens who had been apprehended. As soon as the truck left to process
the aliens, dozens of illegal immigrants simply strolled across into U.S. soil.
I pretended to be afraid of getting caught by the U.S. Border Patrol. But the
smugglers assured me that getting caught was a mere inconvenience. They said the
U.S. government holds illegal aliens for only about 15 minutes and then transports
them back to the Juarez side of the bridge.
As I discovered in my report, the smuggling operation had become an industry
of its own. There were several package deals one could take advantage of: I could
walk across the river with the mob of people for $20. From there, I could pay $35
for a taxi ride to the county hospital, or $20 for a coyote to walk me to a 'safe"
bus stop where I could catch a bus ride to the hospital.
Pretending I could not afford the minimum $20 fee, a sympathetic "coyote" told
me I could cross for only $3 by taking a rafl; ride across the Rio Grande. But 1 would
have to go near the Downtown international bridge, where water levels were low,
only about 3 feet high, he said.
The next day, I went to the Downtown international bridge, where it was common
to see old rafts, boats or tire tubes on the river. I was offered the rafting service
for $2 to $3, and I watched as one pregnant woman took the river ride and was
helped to climb the river levy into El Paso. From the Downtown international
bridge, too, the county hospital was only a bus or taxi drive away.
In pursuit of the story, I went to the county hospital a few days later to see if
the coyotes were right about how easy and free it was to have an American baby.
I sat in the lobby for hours, just observing the women who visited the hospital.
Pretending not to know English, I asked the Mexican women about how to register
at the hospital. All of them were very helpful and understanding. They told me all
I needed was a notarized letter from an El Paso County resident, attesting to the
fact that I lived with him/her in their home. No one would check a passport, or any
other type of identification, I was told. No one would even call the person attesting
to my residency — a fact that I later confirmed with hospital officials.
Because I worked under my maiden name, I got my husband to write me a letter
stating that I lived with him in his home and did some cooking and cleaning. We
had it notarized, since the information was technically correct.
I returned to the hospital with letter in hand. After a short stay in the lobby, it
took only about 10 or 15 minutes to register to have my baby at the county hospital.
The hospital staff was very supportive and pleasant, informing me of the welfare
benefits that were available to me. Aside from the letter, no one asked me for identi-
fication or questioned my U.S. citizenship.
123
Later, I found out that it is against the law for county employees to ask about
citizenship. Also, hospital ofBcials said they never check up on the residency of the
patients because it would be considered discriminatory to check up on the women.
But I questioned why they didn't check up on the women, not based on U.S. citizen-
ship, but on whether they were residents on the county — I told them it would be
as easy as following the women out to their cars, since many of them were driving
vehicles with Mexico license plates, a possible clue that they weren't living in the
county.
Another advantage of the shopping visas, is that it is easy return to El Paso when
it is time to give birth. Several of the women said they stay with relatives or friends
the week before their delivery due date, to ensure they make it to the hospital in
time.
The evidence of what is taking place is clear. Visit the international bridges, and
it's common to see adults using their shopping visas to enter the country. But their
children enter the United States by just saying, "American," since they are U.S. citi-
zens. The birth certificates are priceless. Many of the parents laminate the birth
certificates and have them handy in case immigration officials question the citizen-
ship of their children.
With the declining economic situation in Mexico, it is quite popular to give birth
to American children. It is a sort of insurance policy for the children, providing fu-
ture security of choosing whether to live in the United States as adults, the women
told me.
But a U.S. citizenship, also makes it easier to seciu-e welfare benefits and enroll
their children in American schools, they said. El Paso and Juarez are so connected,
that Juarez residents can use the address of a relative in El Paso to tap into serv-
ices.
That's not to say that al^ Mexican women giving birth in EI Paso do it only to
obtain U.S. welfare.
In my own family — ^half of which lives in Mexico— only one of the cousins was not
bom in El Paso. She was bom in Juarez, and only because family finances turned
sovu- at the last minute and my cousin could not afford to give birth to her daughter
in El Paso. But her other two children are American.
Still, I am glad to report that none of my family members are using American
welfare benefits. However, I do have a close friend from Juarez who went on food
stamps and welfare when her husband left her, using the address of a friend in El
Paso even though she was living in Juarez.
Now that she's back with her husband, who makes a very good living, she still
accepts the welfare and food stamps because it allows her to buy American food
products in El Paso, which she loves but would be too pricey because of the peso
devaluation.
What I have just told you is information that I come about as a reporter and in
daily observations.
As a former journalist, I wasn't going to give my opinion because my job was only
to report the facts. I repeat that I had no agenda when I wrote this story.
However, now that I no longer am a journalist, I think I should give my opinion
to put the information I have given you into perspective.
Again, I want to make it clear that this issue is not about Mexicans, since immi-
grants from other countries appear to be doing the same things from what I have
read.
In my city, this immigration issue is tearing us apart as a community. El Paso,
which is more than 70 percent Hispanic, has split opinions about the situation. In
our border city, Hispanics are the most divided of all.
About V3 of us think that there should be no borders and that people should be
able to make a life wherever they want. About Va of us think that borders should
be shut and no more immigrants should be let in until the country can take care
of "its own." And the remainder of us are somewhere in between. We think that im-
migrants have a right to make it in the United States, but that they should not
have such easy access to welfare, since it is unhealthy for immigrants to enter the
United States with the idea that you don't really have to work hard to live in the
United States since things can be free.
I guess my thinking is closer to this last example. I'm starting to think that this
easy access to benefits is adding fuel to the anti-immigrant sentiment around our
nation. It hurts me when I hear people say that all immigrants are here for a free
ride. When they came to this country, my parents worked very hard — and endured
many of the abuses and disadvantages in the work place that immigrants face — to
give their children a chance at the Ajmerican dream. As difficult as it got, they never
once called on help from welfare. Along the way that taught us a strong work ethnic
and taught us that education is the way to success.
124
Should there be automatic citizenship? Even with all I have said, I still think so.
Being a first-generation American, I can tell you that with a shrinking world, this
country cannot afford to do without diversity. I have an insight into a variety of
worlds just because I speak two languages. I have an understanding of different cul-
tures and how misunderstandings can occur. And unlike many Americans who have
lived in the U.S. for generations and have lost hope — I believe this is still the best
country, offering all of the possibilities in the world.
But I do beUeve that the system is being drained. I believe that people outside
of our country are taking advantage of the system, because they can. Who amongst
us would not pick up $20 bills that were placed on the ground before us.
Instead of taking away that wonderful right of citizenship, work on the abuses
to the system that anger so many and add fuel to that anti-immigrant sentiment.
Let us not forget that this country was made great through the hopes and dreams
of immigrants.
I
125
Love ya, dad — oh, and this call is collect
£1 PdiO Iimci
Uaria, rtghl. who Is pr»gn»nt Cfossefl the Sania Fe Bnaae wim ^e^ husbana. Tomas. ;or a f>ts " c ric v4.i SatuTflay T%e
couple are Juarez resxlems. Out have passpcrs to enter Ei Paso They etpecs their Hrsi chrld to be ben m El Paso Story. lA.
Crossing the border to have a baby
Tb«r«'» 1 ton of ■incrfaaod
unoQ^ tb£ pTtfnASii MexKso
•wneo who ftlher it
TT»«iiA«m HospiiaJ and
Texas Tech MedicaJ C«nt«r.
They thaj-p adner aiul
eoourafprnent wiLh
sL-aa^ers, for Uiey ibare ■
goal, bavia; tbeu' babies
born as l.'.S cinzeas m ■
siodsm Amencazi bofpiiaJ-
U'» t» wcm ihat ucdceu-
mented women hare rradx'
access lo ThomajoE for delir-
ennj -jieir bahio and to
Terai Tech for preaau) care.
Tfcut 9 why I wa* tho« at
Teia» Tedi - oervoui. Tery
pi^ouM. wni) DO ulenufica-
iMn. I wanted u> luul out just
bo*' this ^Cr7 tirwWfu-ial lys-
'■etr. work*
Maa> Mcseac otiicn
•Uo UM a >aaa3on* louii -
\-itt - vtjch aliaw* Lbeai lo
rea^juri m U>e Uc-wd S\^*.^
uD v» TV hmif» - u> *.*» \J£.
med^ral can at v4noua
places m EJ Paao. 1^ thw
term ihoppin^ v.aa.- are mto
aoon ajsoQf Meucx-. -ft-ornec
Reporter tests the system
El Pasoani coraplam often that pr?;nant Mexican
women enter the United States — -ontair-.es iliecal:'- —
to deliver iheir babies without charge ai Thoma.-on Hc.--
pital.
Thi.-. the arrj-en; po«!. costf ever^■ El Pasoan « ri.;f
taxes pay the bilir for the busy county hospital Thor^.i-
son can dct lit:le about i; Federal law prohibit.- qjrji.on-
ine a patier.t ; cr.;:en-hip
To explore thii border pher.cnenon. El Pa.-o Tir.f j r^
porter Emiiv Jaurecui — oniv weeks from deliverir.c her
second child — followed o-.v of the rou-.cs a Juarez woai-
an would uke to have her i.,b> in El Paio. Without
identification and with oniv a notarurd paper atteftir.s
to her residency, she was adiziiied lo Thomason Hofpi-
tal'i prenatal care propam.
.^lonf the way. she icet wanuiv supportive .Juarez
mothers-to-be who helped her. co^vifs who offered pack-
ate deals to ;auef le her across the nver and to the hos-
pital, and patient eniplovee^ of Texas Tech medical cen-
ter and Thomason wno treated her wiih respect and
kindness
Mekmc pvTUtai care a:
TexM.^ Tecfa and prv-reg--rr:
tioc fir deilv^ry al
Tkijr.aaon.
Inatde Texas T«ch. a sz^r
imp l*d w> thre* bury- acr-. .
"May 1 h»!;>-ynu^
•Xk
M-
gusiaro ctnstt.i:-^.' cr-r --
daaar il iirf<i tz:c—3\- - '.
wani#d lo corj-^'. % -^ J
doctcrt ■ I «:iid. •^■•z: ir
TVf WOEil s«-,-.,C'^
imraedjaiflv tjaSp^::sti i^c
added a wide airu^r
Sbc tikad 1/ 1 h-ni x E.
Puo.
Sbt uktd if I had ptcnirr
id«Q&5catMO.
•Ne"
Avaui abe anuM. haad-
iog ovv a pucv of ;.Aper afi^
telLr^ me do« u rrfiat^r
(or preoataj cwre I «»iuid
Dead a lAjhiv bill fraia a
fafime m S r^mo County ■
23-492 0-96-5
126
Crossing
my residt'nce there.
I picked up the paper and
wobbled from the ofTice I sat on
a comfortable purple sofa in the
lobby, staring at the paper. A
woman approached me.
".No sf prcocupc (Don't »or-
r>')." a pregnant woman in her
30s told me. taking my hand in
hers.
She looked at my paper and
sighed.
"This is very easy." she told
me in Spanish, introducing her-
self as Manha. I told her I was
".^ngolica. ' part of my first
name
To register for prenatal care
and deliven- at Thoraason Hos-
pital, all I needed was help from
a fr-.end or 3 relative who lived
in El Paso, she said. They could
KTite a simple, one-line letter at-
testing to my residence in their
home The letter could be cota-
rued for about $3.
"My letter cost me $3." Estela.
sitting next to us with her infant
in a stroller, joined our conver-
sjuon.
"But wouldn't hospital offi-
cials find out I didn't live
thers"" I asked, trving to look
astounded.
No one ever check.-, the wom-
en assured me.
Martha, a domestic worker e.\-
pecting her third child, had been
in the L'nited States illegally for
more than 10 years. She came
over while pregnant with her
first and simply siayed.
Estela lives in .Juarez, but us-
w a pcsapcru lo-'at to come into
"El Paso. .An aunt had attested to
her residency in El Paso, she
told me.
Medicare and more
Tbe women told me about
Medicare, which they said would
pay the full cost of mv deliverv
— about $1,600 for a normal
birth and $2,500 for a Caesarean
section. And thev told me about
WtC — the Women. Infants and
Children program — that pro-
Thomason critidzed
for free baby deKveries
Tiiooiaaon Hospiul sufTeri
a loc of CTiticinr for deliver^
ing the babies of Meucan cit-
ixent, often without cherge.
But few of the critics ur-
dentand that there's nothing
the bospitaJ can do about the
titoation.
"Pregnancy is a nine-
month process and we play a
24-hour part la it, yet we al-
ways come out to be the bad
guys — even if we have all of
these laws that say we don't
have a choice (but to provide
service.)" hospital spokes-
woman .Margaret AlthoCf-Oli-
vas said-
'Our hands are tied, peri-
od."
Federal law prohibits the
hospital from asking for proof
of VS. dtisenahip. Therefore,
hospital officials have 00 ^-
u about bow maay of tbe
Thanason births are to Mexi-
can eitiisut.
Tbe hospital can aak for
proof of reaideoey 1b the
GouBty. A utility Ull and a
notarued statement from a
landlord sufllces.
And the hospital cannot, by
lav. withhoM medical care
until that residency is veri-
Ged. AllhoCf-Olivas said.
Thomason delivers almost
half of all of the babies bom
in El Paso County — just un-
der T.OOO last year.
In 1992. one baby was bom
every hour of every day dur-
ing July.
vides formula and other food for
babies bom to poor mothers.
Eventually. I could apply for
public housing and food stamps,
the women told me.
We chatted about the benefits
of an .\fflerican baby a better
education and a brighter future
for the child. .And they said mv
.American baby would protect mv
from deportation Once I had the
baby. I would be able to walk
the streets without fear because.
.Martha said. "It's not like they
can deport you and the baby.
Your baby is American and it
neetls lu mother.'
Estela and Martha left. I
walked through the lobby and
back outside.
".Vo sc ICO Ian preocupada.' a
woman called out to me. "Don t
look so worried."
Ana Mana. a young mother
patting her baby's back, assured
me I would not be turned away.
She. too. lived in Juarez, she
said, but received medical care
m El Paso for her .Amencan-
bom child.
I asked Ana M.jia and other
pregnant women and new moth-
ers outside the hospital what I
needed to qualif)' for care.
If I couldn't get a notarized
letter. Ana .Mana said. I could
just wait until I began labor to
go to Thomason. That's what she
d:d with her first child — "be-
lor-.' I knew bow easy it was to
register "
I could wait for labor in the
cool, comfortable lobby of Texas
Tech during business hours.
Lots of women did that. Ana
Mana said. She also showed me
the lab area, where dozens of
women awaited medical tests.
"Sit here." she said. "No one
«nll bother you. They 11 just as-
sume vou're wailing for lab
work."
Outside again. I approached
another pregnant woman as she
got into a £ar with Mexican li-
cense plates. I asked about her
paper Blancs reached for a file
full of documents and showed
me her notarized letter.
I pretended not to know En-
glish as I silently resd It. "This
tetter is to venf\- thsi Blancs
Enriq-jet (not ber resi nsme)
live< a; our home at ..."
Taking out a pen. Blanra cop
ied tbe letter for me on a piece
of paper and told me 10 follow
the formaL
I thanked her and headed for
the bus stop. 'Suent.' she called
after me. "Good luck.*
Uttie papenvofk needed
I r«uraed to Texas Tech the
following day with my notarized
letter is hand. I used my o»-n
utility bill — with my husband's
name on iL He also signed a let-
ter saying I lived at our address
I got It notarized Downto»7i for
S3.
Tb^ receptionist took the util-
ity bi^l and the letter and asked
if I iad identu"ication "No " I
said. She put my name on a lis:
I sat in the packed waiting
room.
".Vo ti de aqui (You're not
from here)?" asked Elvira, a
motherly looking woman in her
late Vjs. "You remind me 01 me.
when I was younger." she said.
The woman, accompanying
her pregnant daughter, said I
had r.cthing to worry about. She
reminisced about coming to El
Paso, through California, from
Ti)uaia 20-some years ago She.
too. WIS illegal, scared and prec-
nant :r this city, she told me
Elvj^ looked over my docu-
ment:, then waited for my name
to be called. She coached me
about what I'd be asked and
what sy replies should be. Then
she went wiih me to the regis-
tration desk.
The man there took my docu-
ments and asked a few simple
quest::r.<: Name, address, tele-
phone. He locked up and smiled
ae\'eral times as he typed infor-
matioc into his computer. Then
he toes what looked like a cred-
it card, passed 11 through a com-
puterized device and handed me
m>- own El Paso Care Card.
The process took less than
five minutes. I was registered to
have ay baby at Thomason.
127
Rudy Cutl*rru / El Paso '
El Paso Times reporter Emily Jauregul. left, watched a woman board a boat on the
Mexican side of the Rio Grande after negotiating with the boat operator on 'ares to
cross into El Paso illegally Saturday. Jauregui declined a ride to the other SiCe.
Coyotes include Thomason
in itinerary for pregnant women
By £mlhi J»ur»pil
El Paso Times
The coyoUt •warming tbout
the Mexican iide of the Rio
Grande bndgec notice an obvi-
ouily pregnant woman. They of-
fer all ioru of package dealt, in-
cluding a ride to Thomaton
Hospiiartt front door.
That, at least, wa» my experi-
ence.
Nine months pregnant — and
looking every day of it — I
parked at Juarez's Chamizal
Park one recent weekday and
trudged toward the Cordova
bndge.
The coyotM — people-amug-
glers — wasted no time.
'iQuure cruiaH' ("Do you
want to croas?") asked a tat-
tooed man — one of dozens tit-
ting along the bndge. He looked
too sleazy for conversation.
A few steps later, another man
promised; 'Yo It puedo ayudar."
("I can help you").
Across the bridge, on the U.S.
side, a man in his mid-20s mo-
tioned with hit hand, asking 1/ 1
wanted help crossing over. I
nodded "yes." and be dodged
traffic on both sides of the
bndge to reach me.
"It looks like you're due,"
Tony said.
All couple wants is best
care for unborn baby
By EmllY i»<»cul
ti Paso Tmes
Toreat and hit pregnant
mill. Mana. don't want to
"cheat" El Patoant. They jtitt
want the best medical care
they can afford.
Uting their pasaporu iocoi,
the laiia couple hat been
croaaing over to El Pa«o regu-
larly to viait Matenudad la
Lui in preparation for tha
birth of their Crtt child.
Th* viaat are hard to get —
tbvy are given only to thoaa
who can prove they are gain-
ftilly ampioyed in .Merico and
h«v« no desire to work in tha
Unit«d Sutes.
In Juarez, their baby's
birth would com noshing ua-
d«r Mexico's Stguro Social
health program, he taid.
'But the climct and hospi-
tals are too crowded Some
times you wait hours to see a
doctor. And the service jusi
isn't that good. 1 ;ual want
her to have the best can."
The birth will coet them
about $500 through the EI
Pato midkife clinic plus
■bout tlOO for medicai tests.
Tomas, an accouftu.-,t, and
hit wi/e don't plan to move to
El Paso or seek any form of
welfare benefica.
But they admit they wsnt
Ihcir child, who will be a U.S.
eitlsan, to have the option of
livinf in the United Sutes
' «)ien h* grows up.
"There are better opportu-
nities in this countr> for our
child to have a better life."
Tomaa said. "And. as an
American, our child wont
have to warT>' about a pass-
port to come over:"
128
• I nodded/ ^
He said he could not only get
me across, but deliver me to
Thomason.
How much?
"Fifty."
"^Dolares?"
-Si."
"I don't have that much."
"How much do you have?"
"$27."
He peppered me with ques-
tions. I said I was from Chihua-
hua City and had been in Juarez
four months. I said I had "pa-
pers" from a friend who looked a
lot like me.
He finally offered to take me
across for $20 — with no guar-
antees of a ride to the hospital.
Atop the bridge, he pointed out
Thomason Hospital in the dis-
tance.
Then we walked to the U.S.
side of the bridge as he showed
me how we'd cross: Two men
were crawling through a hole in
the wire fence. Then they
jumped a low barricade and
were on a street in El Paso.
I told him I was much too
pregnant to squeeze through a
hole in a fence. So he pointed to
a crowd of dozens of people
standing around, patiently
watching a green U.S. Border
Patrol jeep.
When the jeep was full of sus-
pected border-crossers, it left.
That signaled many in the
throng to trot across a portion of
Chamizal Park. Others casually
strolled along the sidewalk into
EI Paso.
I stalled.
Tony went into his sales pitch,
describing the advantages of
having my baby in the United
States. He told me about food
stamps, welfare and WIC.
"W/C?"Iasked.
Under the Women, Infants and
Children program, he said. I'd
get free formula, orange juice
and peanut butter for my baby.
He had to explain what peanut
butter was — there's no Spanish
word for it.
He warned that Thomason
would turn me away if I wasn't
actually on the verge of deliver-
ing my baby, so I should wait
until the contractions became
unbearable. He said I could
await that stage at any of the
bousing complexes along Pais-
■^■"
BENEFITS OF HAVING BABIES HERE
Judrez women hoping to
free milk, juices and other
give birth in El Paso list a
food for children through age
string of presumed benefits
5.
for babies bom in the United
■ As a citizen, the child will
States:
not be deported from the
■ Better educational and job
United States and. n>any
opportunities for a child who
women t)elieve. the mother
Is bom a U5. dtizen.
will generally be ignored by
■ Medicaid, for those who
U.S. Border Pauol agents.
qualify, can pay the fuH mst of
■ With American children, a
the delivery and postnata!
famUy with legal residency has
care.
better access to public
■The Women, Infants and
housing and other social
Ctilldren program provides
programs.
ano, where I would blend in with
the residents who escape the
heat by spending time outside
their apartments.
Finally, I declined his offer
and left him there by the bridge.
D C D
A few miles away, at the Paso
del Norte Bridge Downtown,
coyotes were everywhere —
about one every 10 feet. The
competition must push the pric-
es down. The offers here were
mostly for $2 or S3, but I'd have
to ride an inner tube across the
Rio Grande.
"It's not dangerous," a coyote
called Chuy told me.
I followed him to the river — a
stone's throw from the bridge —
and watched as the coyotes ma-
neuvered the inner tubes, their
customers settled into the cen-
ter, across the river.
Chuy pointed: "See, the water
only reaches his waist. Even if
you fall, you won't drown."
A pregnant woman wearing a
checkered red-and-white outfit
approached the coyotes for a
ride across. She said little, ask-
ing only what it would cost for a
little extra help because of her
condition.
She paid S6 for the ride across
and help up the river's steep
concrete bank.
Once across, one coyote
tugged at her hand while anoth-
er pushed from behind until she
made it up the bank. One walked
with her around parked railroad
cars and into Dovyntown El
Paso.
"Sec, it's easy." Chuy told me.
He offered a choice of "package
deals.
For $35. a taxi on the U.S. side
would deliver me to Thomason.
For S20, he'd walk me to San
Jacinto Plaza and get me onto
the correct bus to the hospital. I
wouldn't have to pay until I was
in the taxi or on the bus, be said.
"What if we get caught?" I
asked.
Chuy laughed, saying la migra
would detain me only about 15
minutes, then return me to Jua-
rez. For S15. we could cross the
bridge all day long, if necessary,
until I was safely across.
Chuy's package deals were
similar to a half-dozen others I
was offered that day.
The smuggling business is a
booming industry in Juarez, said
David Ham. U.S. Border Patrol's
supervisory special agent in
charge of the anti-smuggling
unit.
From Oct. 1 to June-'t5. said
Border Patrol spokesman Doug
Mosier. 187.586 undocumented
immigrants — most fron Mexi-
co. China and Central and South
America — were caught by Bor-
der Patrol officials. That's up six
percent from the same period a
year earlier.
No figures are kept on how
many of those are pregnant
women.
"There's quite a network."
Ham said, adding that coyotes
are very protective of the tiny
bit of turf from which they ped-
dle rides across the river.
129
Mr. Canady. Thank you very much. I want to thank each of the
members of this panel for their testimony. It has been very helpful.
I understand, Professor Schuck, you have to go to the airport. I
do have a couple questions, but leave when you need to go. I don't
want to detain you, and make you miss your plane.
In Mr. Bellinger's testimony earlier today, and I don't think he
actually touched on this in his spoken comments, but in his written
testimony he said, referring to the book that you authored, "Schuck
and Smith are proposing a change in the law not a plausible rein-
terpretation of the Constitution. Their theory would require a repu-
diation of the language in the Constitution itself, the clear state-
ments of the Framers' intent, and the universal understanding of
the 19th and 20th Century courts. Indeed, the authors themselves
concede that there is no judicial precedent in support of their the-
ory.
Would you respond to that?
Mr. Schuck. Well I think it's
Mr. Canady. Now this is on the legal issue, not the policy issue.
Mr. Schuck. Yes. I think it is perfectly clear that the Framers
of the citizenship clause never envisioned this particular problem.
There were not illegal aliens at that time. Professor Neuman has
argued that there were. I respond to his claim in my testimony, so
I won't dwell on it here.
For all practical purposes, there were no illegal aliens and the
Framers were not concerned with that problem. What we must do,
therefore, is to try to identify the underlying principles that ani-
mated the citizenship clause and apply them to a problem that
never was before the Framers.
We identify in our book what we believe to have been the ani-
mating principles. They are associated with a body of thought that
was very prominent in the 19th century at that time and was well
understood by the Framers of the citizenship clause. It contained
a theory of jurisdiction which we advance in our book and I have
summarized in the testimony. It is perfectly true that the courts
have not adopted this point of view. They have never had occasion
to address it directly. They did so in dictum in the Plyler case.
They addressed it very casually. I explain in a footnote in my testi-
mony why their treatment of it was quite unsatisfactory. So Mr.
Dellinger is certainly right that the courts have not adopted our po-
sition, but they have not explicitly rejected it either.
Mr. Canady. Let me follow up. As I understand your testimony,
it's your view that on policy grounds, the proposals that are before
the subcommittees are a bad idea?
Mr. Schuck. Yes.
Mr. Canady. And that you would not recommend that we pursue
those. But on your legal analysis, is that the Congress would have
the power to act on this issue by statute. That's your
Mr. Schuck. That's correct, although I think it would be unwise
to do so.
Mr. Canady. I understand that. But you believe that even
though it would be unwise for us to do it, even if you didn't have
the policy objections to Congress addressing this issue, you would
believe that the proper way to address it would be through a con-
stitutional amendment.
130
Now let me ask you to respond to this. Ordinarily, I think the
view of most people is that a constitutional amendment should be
a last resort. Some of us have been criticized for proposing certain
constitutional amendments.
Mr. SCHUCK. I was going to say that these days the presumption
seems to be reversed.
Mr. Canady. Well, for instance in the case of the flag amend-
ment, we can argue about whether that's a good idea or a bad idea,
but Congress did try to address that issue by statute and was un-
successful in doing so. So the general principle I think that most
people would follow is that you don't immediately jump to trying
to amend the Constitution to address a particular problem if there
are other ways to address that problem, such as by enacting a stat-
ute. That would ordinarily be the preferred course. Do you reject
that general principle?
Mr. SCHUCK. No. Of course I heartily endorse the principle that
the Constitution ought not to be trifled with and that amendments
to the Constitution ought to be resorted to only in the most ex-
treme circumstances. I think that this is not such a circumstance,
but I also believe that when a change is to be made in a longstand-
ing practice that affects the vital interests of lots of people and that
moreover has been endorsed by the courts and most scholars, al-
though my view is that that view is wrong, I think that it's unwise
to undertake a change of this kind simply on the vote of a transient
majority. It seems to me that the seriousness of a change of this
kind requires that it be approached in a rather different, more de-
liberative fashion.
Mr. Canady. Thank you, Professor. I have no additional ques-
tions. Mr. Becerra.
Mr. Becerra. Thank you, Mr. Chairman. Recognizing that the
professor will have to leave soon, let me try to focus my first ques-
tions with the professor.
Professor Schuck, let me ask, you made some very interesting ob-
servations. You don't believe policy should drive us to changing
birthright citizenship, but you believe that Congress has the power
to do so. If it found, say, through some court action after Congress
should act based on your interpretation of the ability to do so,
change birthright citizenship, should the Congress act and the
courts reject that congressional action, do you think that at that
point we should stop or we should still consider going through a
constitutional amendment?
Mr. Schuck. No. I think you should stop. I think that this is not
a prudent expenditure of congressionsil energy for all the reasons
that I gave.
I can imagine a circumstance in which revision of the birthright
citizenship rule might be justifiable. We are very far from being at
such a situation. It would require that the enforcement of our im-
migration laws be so much more effective than it is and that I
think it is ever likely to be, given the constraints under which that
operates, that it is for all practical purposes a nonexistent possibil-
ity.
Mr. Becerra. I appreciate your observation about what we might
end up with should we go about trying to change birthright citizen-
131
ship status that we provide right now for people. You did talk
about Germany and so forth.
Actually, Mr. Chairman, let me do this. I understand that the
professor may have to go. Let me yield back my time for right now,
if I could be recognized to continue my 5 minute questioning, in the
event that some of the members have questions for the professor.
Mr. Canady. Quite frankly, I think if the professor doesn't go
now, he's not going to make his plane.
Mr. Becerra. Thank you very much. Thanks for being patient.
I'll go ahead and continue.
Ms. Zinser, let me ask you a couple of questions. I appreciate
your testimony as well, because you obviously as a representative
of the local government have to deal with the whole issue. You
mentioned some numbers and the costs involved. There was a
study done in San Diego County by the Healthcare Administration
Programs at the National University in San Diego. Are you famil-
iar with that particular study?
Ms. Zinser. No. I'm not.
Mr. Becerra. Let me just mention a couple of the findings of the
study. It mentioned a lot of what you happen to have mentioned.
It also did talk about the difference in preventative costs versus re-
medial costs of health care. If you try to provide prenatal care serv-
ices to someone, you are certainly going to save a lot more than if
you wait until the baby is bom and have to deal with neonatal in-
tensive care units and so forth. But they also mention different fig-
ures from what you mentioned with regard to costs incurred by the
county for services, healthcare services to the undocumented, and
the revenues that are generated through the undocumented.
They mention that the costs, healthcare costs for the county of
San Diego in 1992 were $26.6 million, and that the revenues that
the county generated from the undocumented were approximately
$60.5 million. They count payroll tax, sales tsix, income tax, excise
tax, lottery tickets, gasoline tax and vehicle registration fees. I
know that no one here is expert on all these different studies and
so forth. But would you agree that there are revenues that are col-
lected through the undocumented immigrant?
Ms. Zinser. There are revenues, yes.
Mr. Becerra. And isn't it the case, I know an L.A. County study
found that it's the case that most of the revenues generated by
these immigrants, legal or undocumented, but specifically speaking
of undocumented, actually go to the Federal Government and never
make it back to the locality like San Diego County, so that you
never even get to see even a fair share of the revenues that are
paid by the undocumented immigrant. Would that be fair to say?
Ms. Zinser. I think that's fair to say. Our county's concern is
that we believe there are about $304 million of costs incurred and
the net cost to the county is $64 million. That's the county, not the
State and not other municipalities.
Mr. Becerra. Understood. With regard to the families that you
spoke of that utilize the Medicaid or Medi-Cal services as a result
of having a child bom in this country. Are you aware of any fami-
lies, immigrant families, undocumented immigrant families, who
have come in already child in hand? In other words, having had
children before they cross into this country?
132
Ms. ZiNSER. I would presume that occurs, but I'm not personally
familiar with the statistics.
Mr. Becerra. I ask that because I think both Professor Neuman
and Professor Schuck I think may have mentioned that. Whether
you deny someone citizenship won't drive them ultimately to make
a decision to leave this country, because what drove them to this
country wasn't necessarily I think to have a child but to get a job.
Although Ms. Juaregui Alcantar just mentioned that there are indi-
viduals who do it, I think the vast majority of people who come into
this country are doing so to stay, or at least to stay long enough
to earn some money.
I don't know if your experience is, as you mentioned, you don't
know any particular families personally, but I was just wondering
if you might have had that experience.
Let me ask Professor Erler a question. What determines alle-
giance?
Mr. Erler. What determines allegiance, the Framers of the 14th
amendment were quite clear. It's political allegiance. We have
heard some talk here that everybody who was subject to the laws
of the United States is subject to the jurisdiction of the United
States, but that was denied by the Framers of the 14th amend-
ment. They said that you must owe allegiance to no other country.
They explicitly said that this means that you must be within the
political jurisdiction of the United States. So the idea that anyone
who was subject to the laws of the United States is also subject to
the jurisdiction is not true. That was not the understanding of the
Framers of the 14th amendment. The idea of jurisdiction was polit-
ical jurisdiction in the sense that members of Indian tribes were
not subject to the jurisdiction of the United States.
Mr. Becerra. But when the congressional debate which ensued
as a result of the amendment provides us with a record that shows
that several members at that point debated whether Chinese immi-
grants would be allowed to become United States citizens — children
of Chinese immigrants who were not permitted — at that point, I
don't know if they were permitted to become U.S. citizens or con-
sidered U.S. citizens, but the children of these Chinese immigrants
would become U.S. citizens. The question was posed by one of the —
I'm not sure if it was a Representative or Senator, to those who
were proposing the amendment. The proponents of the amendment
said certainly a child, whether Chinese or Gypsy in origin, just like
any Grerman child bom to Grerman immigrants would become a
U.S. citizen. How do you reconcile that with what you say?
Mr. Erler. Well, I think that the problem here is that, as has
been mentioned, the problem with illegal immigration was not a
very grave one in 1868. But I think that the problem here is that
anybody who comes to the country legally would be subject to the
jurisdiction of the United States because this is more or less an
offer by the United States. If you accept our terms, and those terms
are specified by immigration laws and procedures for naturaliza-
tion, this makes the people subject to the jurisdiction of the United
States. They consent to be subjected to the jurisdiction and they
are subject to the jurisdiction.
It is not the case with the illegal immigrants, however, because
they have come here against the laws; this is almost proof positive
133 \
of the fact that they are not subject to the jurisdiction of the United
States, and do not believe themselves to be subject.
Mr. Canady. The gentleman's time has expired.
Mr. Becerra. Thank you, Mr. Chairman.
Mr. Canady. I'll recognize Mr. Bryant. Mr. Bryant will ask some
questions. Then we will recess for the vote.
Mr. Bryant. I thank all of you for your testimony. I apologize for
being in another meeting and missing some of it. The legalities of
this will ultimately be decided by I guess the Supreme Court as
we've got obviously some very superior legal minds here today that
can't agree on it.
I am more concerned with the policy issues, the practical effects.
The two of you who are in the areas where this occurs, I would be
interested in an answer, if I could get one from you in terms of the
policy. Again, Ms. Zinser and Ms. Alcantar. I'm from Tennessee, I
cannot do as well as Mr. Becerra.
What is the practical effect, in your opinions, having dealt with
the problem, having investigated the problem, of the potential for
deterrence if one of these bills or an amendment passed? Would
there be deterrence to prevent illegal entry? Admittedly oiir en-
forcement is — we just don't have the assets to enforce it as well as
we'd like to, any law. But would this have a practical effect of serv-
ing as a deterrent to some people from coming over?
Ms. Zinser. I think it would, because I find it curious that 51
percent of the moms giving birth immediately apply for public as-
sistance for that child. If in fact they do have jobs, why are they
applying for public assistance.
When we work with these families and aid these families, we
have difficulties in determining whether or not they have income,
because they are not legally allowed to work in the United States.
They don't have Social Security numbers. The means we use to
deter fraud rely on the existing systems. Social Security numbers,
the State employment department's labor files, the tax files in Cali-
fornia. So we are concerned about some abuses in the system.
Ms. Jauregui Alcantar. In my case, in the case of El Paso, I
don't think if the laws were changed I don't necessarily think it
would be a deterrent. I think in the El Paso area the case is that
women from Mexico have their babies in the United States more
as an insurance policy for their children. Juarez for them is a nice
place to live. So it seems like they prefer to live in Juarez. They
just like to have their children as American so they can be edu-
cated in American schools and if things go really bad, they can get
American benefits. So I don't think — if you change it, the only
thing that would change is that some of the abuses to the Medicaid
and other systems would change.
Ms. Zinser. I think so too; I think there's some confusion about
the residency requirements for these categorical aid programs. You
must be a resident of the community where you receive the bene-
fits. We think a lot of people receive benefits from the county of
San Diego, and like Emily said, live on the other side of the border.
It is very difficult for us to prove where someone lives when a rel-
ative writes a letter saying they live with them in the United
States.
134
Ms. Jauregui Alcantar. And there are not the resources to
check up on it. You know, in my case, after I called the hospital
as a reporter and I told them what we had done, the spokesperson
actually cried on the telephone. I asked them well why don't you
go to some of their homes and at least catch maybe 10 percent —
that they don't live there. She said, "We don't have the resources
to go knocking on doors. Even if we did, what would we say, okay
where are they, show me the room, show me their underwear" she
told me, which I thought was funny. So that's basically the situa-
tion. A lot of it is just for the welfare, because Mexico is such a
poor country. With the peso devaluation, the American dollars that
they get are worth a lot in Mexico.
Mr. Bryant of Tennessee. Ok.
Ms. ZiNSER. The other thing that I hear often from the line staff
that are working with these mothers is they take their kids back
to Mexico and register their births in Mexico and get a Mexican
passport so that they can go back and forth across the border very
easily.
Ms. Jauregui Alcantar. I believe they have dual citizenship
until they are 18, they have to decide whether they are going to
be Mexican or American.
Mr. Bryant of Tennessee. Thank you.
Mr. Canady. Thank you. We are going to recess now for a vote.
Mr. Smith will be back momentarily. So I believe that we'll resume
as soon as he gets back. So bear with us.
[Recess.]
Mr. Smith [presiding]. The subcommittees will reconvene. Let me
explain what is going on. There will be another vote in about 5
minutes or so. What I am doing a little bit here is indulging myself
because by coming back, I can get in more than 5 minutes of ques-
tions. Then we may probably be adjourning for the day.
Before I get to my questions, I do want to thank the members
of the final two combined panels for the effort that they made. I
am sure you all think sometimes or wonder sometimes if it's really
worth it. You have come from New York, California, Connecticut,
Texas, perhaps. It's a big effort. We appreciate it. To my knowl-
edge, though, this is the first time we have ever, meaning the
House, has ever had a hearing on this subject. So we are building
a record for years to come and appreciate the expertise that you all
contribute.
Let me go to my questions. Ms. Jauregui Alcantar, if I may start
with you. A couple of quick questions. I think you covered this or
touched upon it in your testimony. What did you find was the level
of knowledge of the women who wanted to come to the United
States to deliver a child? What was their knowledge of Medicaid
and WIC and other public benefit programs? Were they sophisti-
cated in their appreciation of what awaited them or not?
Ms. Jauregui Alcantar. Yes. It wasn't only the women who
were pregnant and at the hospital, it was the people smugglers
that I talked about. They knew a lot more than I did, which sur-
prised me. They knew more than me about what I could receive if
my child was American.
Mr. Smith. Your observation, meaning more than you did, and
you were a U.S. citizen.
135
Ms. Jauregui Alcantar. Yes. They spelled it out for me. You
know, the WIC, the public housing, the public education for my
child and things of that nature.
Mr. Smith. Do you feel that the prospect not only of benefits, but
the prospect of automatic citizenship encouraged women to come to
the United States? How would you rate that as a factor? Was that
the determinative factor? Was it just a minor factor? How impor-
tant was the promise of citizenship for a child?
Ms. Jauregui Alcantar. I think it weighed heavy for them. Ba-
sically very important — and I didn't get this from the initial report,
I got this from followup, because as I went down to the inter-
national bridges to cover other stories, I began to notice that in a
lot, a lot of cases, whenever you see a child crossing the border, the
parents show their visa, their shopping visa, but the child says
American because they are American. The parents carry many
times the birth certificate laminated and carefully tucked in their
purses. Whenever they are questioned about their children they
pull it out. So, to me, that showed me that it's very important, be-
cause it allows that access into the United States, and it allows
their children all of these rights as an American.
Mr. Smith. Right. I agree with you. I thank you for your testi-
mony.
Ms. Zinser, I have a couple of questions. I am taking my ques-
tions in the order I read your testimony. You mentioned in 1992,
there were 6,000 children bom to undocumented immigrant par-
ents in San Diego County hospitals. I have always wondered how
do you determine who is an undocumented immigrant child?
Ms. Zinser. These were cases where the mother applied for
Medi-Cal benefits under the restricted eligibility program. That
program only exists for undocumented immigrants.
Mr. Smith. Ok. In the case of individuals though who come for
some type of health care, there is no effort made to determine the
validity of the documents that might be used to show that they are
eligible, or is there?
Ms. Zinser. There is an effort made to determine eligibility.
However, if someone wants to apply for restricted benefits, we are
restricted in what we can ask them about their citizenship status.
In reference to some of the comments by Congressmen earlier in
the day, I want to be sure the committee understands that every
time we take an application for public assistance, food stamps,
AFDC, or Medicaid, we ask what your citizenship status is. That
is a question on every form. So it's colorblind, basically.
Mr. Smith. Right. Would it not be fair to say that it's awfully
easy to perhaps fudge the truth or even use a fraudulent document
and obtain health care benefits to which you would otherwise not
be entitled?
Ms. Zinser. There is fraud in the Medicaid program,
Mr. Smith. If illegal aliens are not supposed to be eligible for
Medicaid, does what you just say sort of explain how the illegal
aliens are accessing benefits?
Ms. Zinser. They are eligible for Medicaid restricted benefits.
They are eligible by Federal law for pregnancy related services and
life-threatening emergencies. The Federal Government currently
136
pays for 50 percent of those costs. The State pays the other 50 per-
cent.
Mr. Smith. You mentioned in your testimony that expenditures
for services are growing at a frightening rate, with no end in sight.
What has been the general rate of growth?
Ms. ZiNSER. The growth in the undocumented case loads in about
four years was somewhere in the neighborhood of 117 percent
statewide.
Mr. Smith. Over 100 percent in four years was the growth? That
is just amazing. You know, if nothing else, we're finding out that
it's a serious problem. We're less sure today about what to do about
the problem. But clearly, the problem is undeniable.
Ms. ZiNSER. I think that's what the border communities in par-
ticular are concerned about. Making sure that you all understand
that this is a problem that we see. You need to hear about it.
Mr. Smith. Thank you. Let me go to Professor Erler and Profes-
sor Neuman, and perhaps bounce some questions between the two
of you all.
Professor Erler, I was struck and in fact convinced by your sub-
mitted testimony and what you have written on this subject in an
article, that the legislative history surrounding passage of the 14th
amendment in fact implies two things or suggests two things. One,
clearly that illegal aliens were not considered as such when the
14th amendment was written. Second of all, I think that the juris-
diction clause is not just redundant, but in fact, has real meaning.
In fact, according to the conversation that took place on the House
floor in 1866 it could be interpreted to mean that there was an ef-
fort to restrict citizenship to those who were not foreigners or not
aliens in addition to the other two classes.
But let me go back to a couple of points I remember making
when I read this. You say that to assume as many do today that
all persons bom in the United States are automatically subject to
the jurisdiction of the United States by virtue of their birth would
render the jurisdiction clause superfluous.
Let me ask Professor Neuman, who disagrees with that, why you
disagree. If words have meaning and there's a reason for that
clause and it was a restrictive clause, why doesn't that restrict the
group of individuals who would otherwise be given citizenship?
Mr, Neuman. That is a very easy question to answer.
Mr. Smith. Good.
Mr. Neuman. First of all, the Supreme Court has explained what
the clause means. It is not redundant. It excludes children of for-
eign diplomats, which is the subject of the sentence you are refer-
ring to. It excludes children accompanjdng invading armies. It has
also been interpreted as excluding children bom as members of In-
dian tribes, and it excludes, according to some, children bom on
foreign vessels of war. There are different views as to how often
that needs to be mentioned, because there are not that many
women on foreign vessels of war in the U.S. territorial waters giv-
ing birth.
That is what it means. It is not redundant. That doesn't mean
it has the open-ended meaning that Professor Erler attributes to it.
Constitutional interpretation does not proceed by reading
through a legislative history and finding a single sentence and pull-
137
ing it out and attributing to it a meaning which is inconsistent
with the rest of the legislative history. There's a sentence which
was previously discussed with Mr. Bellinger, in which it is said
that this would exclude foreigners, aliens, ambassadors. If that sen-
tence means something more than just ambassadors, then that
means that no child who is born to foreign parents in the United
States is a citizen of the United States. That would mean that
Wong Kim Ark was wrongly decided, that permanent resident
aliens' children are not citizens of the United States under the Con-
stitution, and that all the people in the debates on the 14th amend-
ment who thought that the 14th amendment was going to be pro-
tecting the children of the Chinese in California were wrong. That
can't be the meaning of that sentence.
Mr. Smith. Thank you. Professor Neuman.
Professor Erler, I am going to give you a chance to respond to
that. Your article states that any reasonable person would have to
agree that "subject to the jurisdiction of the United States" means
those who are within the geographical limits of the country legally.
That is, with the permission of the United States. Then you say,
the fact that illegal aliens have violated laws in the United States
precludes any possibility that they can be properly said to be with-
in the jurisdiction of the United States.
What is your response to my question and/or what Professor
Neuman said?
Mr. Erler. Well, I think that so far from taking one sentence out
of context, when we look to the meaning of the jurisdiction clause,
the debate in Congress was rather — not extensive on that issue.
But here we have the author of the citizenship clause saying what
it meant. He was challenged at that point, you are making citizens
out of Indians, you are making citizens out of the children of am-
bassadors who are in the United States. He said, no. No. Then he
stated precisely what it meant to be within the jurisdiction of the
United States.
Now what I meant by those other phrases was simply that if it's
true that you are within the jurisdiction of the United States when
you owe allegiance to no other country, the phrase that came out
of the Civil Rights Act of 1866 and was used by Senator Trumbull
in his remarks on the floor, that you are subject to the jurisdiction
of the United States when you owe no other allegiance and you owe
allegiance to the United States. Presumably what that means in
the first instance is that you are willing to obey the laws of the
United States and that no one who enters the country illegally can
be subject to the jurisdiction of the United States. It means politi-
cal jurisdiction. This was a phrase that was used over and over and
over again in the debates. It does not mean just subject to the laws.
Mr. Smith. One more question. Since the court under article 1
has plenary power over naturalization
Mr. Erler. In the Congress. Congress has plenary. You said the
court.
Mr. Smith. Pardon me. Since Congress has plenary power to es-
tablish national immigration policies, do you feel then that Con-
gress could change the policy in regard to birthright citizenship by
a statute?
138
Mr. Erler. I do believe that. I believe that Congress can act
under section 5 of the 14th amendment to define those who are
subject to the jurisdiction of the United States. As I believe I said
in my remarks, the Congress has done that time and time again
by bringing Indians into the jurisdiction of the United States by
legislation.
Mr. Smith, Thank you. Because I'm going to have to go vote, I'd
like to quickly ask every member of the panel to make any final
point that they would like to make and give you a last chance to
state a thesis or an opinion.
Ms. Zinser, we'll start with you.
Ms. Zinser. From the perspective of San Diego County, we think
it's a problem. We think that the welfare benefits are an attraction.
We think you need to do something.
Mr. Smith. That's straight and to the point. Thank you. Profes-
sor Neuman.
Mr. Neuman. Upon close examination, none of the arguments in
favor of interpreting section 1 of the 14th amendment to permit
Congress to have this power make any sense. If you look at the cat-
egory of children bom to temporarily, but lawfully present aliens
and you test each of these arguments, and you say, how would this
apply to this category of children, you will see that people are pull-
ing together little fragments that point in different directions, and
that the only reasonable interpretation of both the language and
the legislative history is the one that the Supreme Court set out
in Wong Kim Ark.
Mr. Smith. Thank you, Professor. Professor Erler.
Mr. Erler. I think when Mr. Bellinger previously said that any
statutory attempt to deny birthright citizenship to children of ille-
gal aliens would be clearly unconstitutional, he is incorrect. I don't
think that there is a single legal precedent that would stand in the
way of such a statute. I believe that there is plenty of precedent
that would support it.
For example, in the Elk case, the court emphatically said that no
one can become a citizen of the United States without the permis-
sion of the United States. I think that that is still good law. I think
it should be the basis of good policy.
Mr. Smith. Thank you. Ms. Jauregui Alcantar.
Ms. Jauregui Alcantar. My name alone has been a challenge.
[Laughter.]
Mr. Smith. Now don't you think I have handled it fairly well?
Ms. Jauregui Alcantar. Yes.
Mr. Smith. You don't have to answer that, but I've been trying.
Ms. Jauregui Alcantar. What I'd like to say is that I do believe
the system is being drained. I believe that people outside of the
country are taking advantage, but only because they can. Who
amongst us would not pick up $20 bills that were placed on the
ground before us? But instead of taking the wonderful right of citi-
zenship, I think we should work on the abuses to the system that
anger so many and add fuel to the anti-immigrant sentiment. Let
us not forget that the country was made great through the hopes
and dreams of the immigrants.
Mr. Smith. OK Thank you. Let me add my own final summary
of the day, if I might. First of all, the whole subject of birthright
139
citizenship is very much of a legitimate issue. I think that in a de-
mocracy, we have every right to consider whether laws or in fact
constitutional amendments are serving their original purpose. That
was one of the goals of today, to try to determine whether that was
the case or not.
We have also heard a number of legal arguments. We have heard
one argument that we can't and shouldn't tamper with the 14th
amendment. We have had another argument that we can modify
birthright citizenship by statute. We've had another argument that
it would take a constitutional amendment to change the 14th
amendment.
I think regardless of the ways that modification of the doctrine
might occur, and there have been differences of opinion on that
subject, to me at least, it has been clear that the impact of the 14th
amendment has been in ways not foreseen by those who wrote it.
In fact, as we have heard today, the impact would include attract-
ing individuals to come to this country to give birth and to receive
other benefits.
What we have heard is that the problem is real and growing. In
the case of San Diego, the cost of the children of illegal immigrants
has been going up at the rate of above 25 percent a year. In the
case of Los Angeles County, we have had testimony made a part
of the record that shows that the total cost to that one county alone
exceed $1 billion, and that 16 percent of the individuals bom in
California, I think this is correct, are the children of illegal aliens.
As far as what this committee should do, I think that it is appro-
priate, at least for the time being, that we defer action and put our
shoulder behind the immigration reform bill that has now been ap-
proved by the full committee, and make sure that that gets passed
before any action might be taken.
I do think that we have to acknowledge that the 14th amend-
ment, because it is not being enforced in ways as originally in-
tended, certainly deserves scrutiny. That's why we had the hearing
today.
Thank you all for being with us. We appreciate your time, your
effort, and your expertise.
The subcommittees are adjourned.
[Whereupon, at 3:45 p.m., the subcommittees adjourned.]
I
APPENDIXES
Appendix 1 — Statement of Hon. Ileana Ros-Lehtinen, a
Representative in Congress From the State of Florida
Proposals to deny citizenship to children bom in the U.S. are contrary to the
greatest traditions of this country and, ultimately, counterproductive to the goal of
mil assimilation.
The success of our nation in science and economics rests to a major degree on the
openness of this country to the ambition and energy of immigrants. Immigrants
have made a tremendous contribution to American leadership in the fields of science
and engineering. As George Gilder points out in The Wall Street Journal, half of
the advanced degrees in the "hard sciences" (i.e.: computers, math, engineering) in
the U.S. are held by first generation immigrants and their children. Allowing our
historic openness to be replaced by hostility will deprive us of the world's best in
these vital fields.
These proposals would permanently mark the children of undocumented immi-
grants who nave no control over the actions of their parents. The net effect of such
stigmatization would be the creation of a population that is estranged fi:t)m the
mainstream cultiu% and prevented fi-om assimilating in the time tested tradition of
America.
In conclusion, adopting such a policy against the children of immigrants would re-
verse four centuries of traditional American justice and fairness on this issue. This
tradition was spelled out clearly after the Civil War in the adoption of the 14th
Amendment which states that "all persons bom in the United States * ♦ * are citi-
zens of the United States".
(141)
Appendix 2 — ^Addendum to Professor Neuman's Statement
Professor Brier's testimony also argues in favor of Congress's power to withdraw
citizenship from children bom in the United States. Most of these arguments have
already been addressed, but a bri^f recapitulation, and attention to a few new as-
pects of the argument, may be useful.
Initially, it is important to recjill that the question of birthright citizenship in-
volves several distinct categories of children bom in the United States. These in-
clude children of citizens, children of lawful permanent resident aliens, children of
lawfully present nonimmigrants, children of illegal aliens, children of foreign dip-
lomats, and children of noncitizen Indians. A proposed reinterpretation of the Citi-
zenship Clause of the Fourteenth Amendment must offer a consistent account of
whether the clause confers citizenship on each of these categories.
Like other revisionist efforts, Professor Brier's arguments £U"e self-contradictory.
He purports not to interfere with the Wong Kim Ark decision, which recognized that
the Citizenship Clause guaranteed U.S. citizenship to the children bom to lawful
Chinese alien residents. But preserving Wong Kim. Ark is utterly inconsistent with
reljdng on snippets of legislative history that suggests that a child is not "subject
to the jurisdiction" of the United States unless it owes exclusive allegiance to the
United States. * Senator Trumbull did make a remark to that effect in the legislative
history, but Senator Trumbull was mistaken, and his error was not shared by Sen-
ator Howard, or by the other Senators who understood that the Citizenship 'Clause
would protect Chinese children bom in California. Similarly, Senator Howard's sen-
tence about "foreigners, aliens, who belong to the famiUes of embassadors," obvi-
ously refers only to the children of diplomats, because otherwise it would not cover
the children of lawful immigrants.
The traditional interpretation of the Citizenship Clause does not render the
phrase "subject to the jurisdiction thereof superfluous. It defines it in precisely the
way that the Framers of the Fourteenth Amendment intended, as excluding tribal
Inmans and the categories traditionally excluded at common law like children of
diplomats.
The traditional interpretation of the Citizenship Clause is not inconsistent with
the notion that each country has the power to determine who its own citizens will
be. The United States has exercised that power through the adoption of the Citizen-
ship Clause itself Usually nations do not give consent to the citizenship of individ-
uals one at a time, but do so by broad categorical rules. If the United States wishes
to narrow its present rule of birthright citizenship, it can do so only by constitu-
tional amendment.
The fact that illegal alien parents may be in the United States in contravention
of its laws does not change the fact that their native-bom children are subject to
the jurisdiction of the Umted States. First, it should be remembered that the Citi-
zenship Clause addresses jurisdiction over the native-bom child, not over its par-
ents. Second, it is meaningless to speak of an newborn child as obeying or disobey-
ing U.S. law. Third, and most importantly, the requirement of jurisdiction concerns
the power of the United States and the obligation of obedience to its laws, not
whether the individual has obeyed the laws. V^en children are bom in the United
1 Wong Kim Ark also refutes Professor Erler's attempt to attribute a restrictive meaning to
the phrase "political jurisdiction" that would justify narrowing the Citizenship Clause:
"It can hardly be denied that an alien is completely subject to the political jurisdiction of the
country in which he resides — seeing that, as said by Mr. Webster, wnen Secretary of State, in
his Report to the President on Thrasher's case in 1851, and since repeated by this court, 'inde-
pendently of a residence with intention to continue such residence; independently of any domi-
ciliation; independently of the taking of any oath of allegiance or of renouncing any former alle-
giance, it is well known that, by the public law, an alien, or a stranger bom, for so long a time
as he continues within the dominions of a foreign government, owes obedience to the laws of
the government, and may be punished for treason, or other crimes, as a native-bom subject
might be, unless his case is varied by some treaty stipulations.' "
United States v. Wong Kim Ark, 169 U.S. 649. 693 (1898). As this paragraph makes obvious,
being subject to the "political jurisdiction" just means being fully subject to the legislative power
of Congress.
(142)
143
States to U.S. citizen parents, we do not ask whether the parents have paid their
taxes or are fugitives from justice or have deserted from U.S. armed forces abroad —
the children are bom in the United States and are subject to its laws, and that enti-
tles them to citizenship.
The case of McKay v. Campbell, 16 F. Cas. 161 (D. Or. 1871) (No. 8,839), dis-
cussed at the hearing, adds nothing new to this argument. McKay was bom in the
Oregon territory in 1823, at a time when power over the territory was provisionally
shared between the United States and Great Britain pending resolution of their
claims to the territory. McKay's father was a British settler, and the court merely
held that McKay was bom owing allegiance to Great Britain, and not to the United
States, under the peculiar arrangements governing that territory. When the court
Soke of citizens as being bom "within the power, protection and obedience of the
lited States," id. at 164, it meant owing obedience to the United States.
Professor Erler further argues that Congress has power under Section 5 of the
Fourteenth Amendment to determine who is "subject to the jurisdiction" of the Unit-
ed States, and has exercised that power to "extend" the jurisdiction to Indian tribes.
This argvmient misconceives both Congress's power under Section 5 and U.S. nation-
aUty law. First, the Supreme Court has repeatedly emphasized that Congress's
power to enforce the Fourteenth Amendment does not include the power to "restrict,
abrogate, or dilute" the guarantees of the Fourteenth Amendment. Mississippi Uni-
versity for Women v. Hogan, 458 U.S. 718, 732-33 (1982); Katzenbach v. Morgan,
384 U.S. 641, 651 n.lO (1966). Congressional power to redefine the term "jurisdic-
tion" would be particularly inappropriate, given that the Citizenship Clause of the
Fourteenth Amendment, unlike the Ehie Process and Equal Protection Clauses of
the Fourteenth Amendment, was specifically intended by the Framers as a limita-
tion on future Congresses as well as a Umitation on the states.
Second, Congress's extension of U.S. citizenship to individual Indian tribes was
not an exercise of power to "extend" the jurisdiction of the United States within the
meaning of the Citizenship Clause, but rather was an exercise of Congress's power
to confer citizenship on persons who are not guaranteed it by the Citizenship
Clause. Both before and after the adoption of the Fourteenth Amendment, Congress
has conferred citizenship at birth on persons who did not obtain it by the constitu-
tional jus soli rule, pursuant to Congress's power under the Naturalization Clause
of Article I. An important example is the extension of citizenship to children bom
to U.S. citizen parents outside the borders of the United States. Rogers v. Bellei,
401 U.S. 815 (1971); United States v. Wong Kim Ark, 169 U.S. 643, 672 (1898). Ex-
tension of citizenship to particular Indian tribes has also been considered an exer-
cise of the naturalization power. See Wong Kim Ark, 169 U.S. at 681; Elk v. Wilkins,
112 U.S. 94, 103-05 (1884); Felix S. Cohen, Handbook of Federal Indian Law 517-
20 (1st ed. 1942). Indeed, Elk v, Wilkins explicitly describes examples listed by Pro-
fessor Erler as exercises of the naturalization power.
Finally, Professor Brier's testimony concludes with the claim that the Framers of
the Fourteenth Amendment could not have intended to adopt the common law rules
of birthright citizenship because those rules are feudal in origin and inappropriate
for a democracy.2 Professor Erler is entitled to his political opinions, but it is obvi-
ous that they were not shared by the Framers of the Fourteenth Amendment or by
the Supreme Court in its authoritative interpretation of the Fourteenth Amend-
ment.
In siunmary. Professor Brier's testimony gives Congress no basis for assuming
that it can change the birthright citizenship rule without amending the Constitu-
tion.
2 Part of the contradiction Professor Erler sees lies in the old British rule of indefeasible alle-
giance, which is inconsistent with an individual right of expatriation. But there is no necessary
connection between birthright citizenship and indefeasible allegiance. The British abolished the
doctrine of indefeasible allegiance in 1870 without changing their birthright citizenship rule,
and modem Untied States nationality law includes both the birthright citizenship rule of the
Fourteenth Amendment and the individual right of expatriation.
Appendix 3 — Statement of the Mexican-American Legal
Defense and Educational Fund
The Mexican-American Legal Defense and Educational Fund [MALDEF] appre-
ciates the opportunity to submit testimony regarding proposed changes to the Four-
teenth Amendment of the Constitution. MALDEF is a national nonprofit organiza-
tion dedicated to protecting and promoting the rights of Latinos in the areas of edu-
cation, employment, political access, immigration and language rights.
Congress must reject proposals which eviscerate the rights of citizenship. Propos-
als to selectively eliminate birthright citizenship are inconsistent with the fun-
damental norms of the Constitution. Not only do these proposals fly in the face of
the plain meaning of the Citizenship Clause of the 14th Amendment, but they con-
flict with the principle of equal protection under the law.^ The alleged interest in
regulating migration simply does not justify a radical departure from Constitutional
principles through legislation or a Constitutional amendment. Lastly, abstract
claims that citizenship rest only on a theory of "mutual consent" of the nation, are
clearly insupportable.^ Congress should recognize H.R. 1363, H.J. Res. 64 and H.R.
705 as dangerous incursions into our Constitutional heritage.
MANIPULATION OF BIRTHRIGHT CITIZENSHIP THROUGH HISTORICAL OR JURISDICTIONAL
CLAIMS ARE SPECIOUS
Our American tradition has long established that citizenship is the right of each
individual bom in the sovereign's territory, regardless of the nationality of his or
her parents. The concept of citizenship by birth, except for the brief and shameful
detour of Dred Scott, was an established Anglo-American common law principle.
Birthright citizenship was established for the children of freed slaves and reiterated
for others in the Citizenship Clause of the Fourteenth Amendment. This clause de-
clares that "all persons bom in the United States and subject to the jurisdiction
thereof are citizens of the United States." ^ For a country of immigrants, this clause
ensures all members of the community will be accepted on equal terms.
The Supreme Court decisively rejected the notion that the parent's immigration
status of the U.S.-bom child limits the universal application of the Citizenship
Clause. In explaining the Citizenship Clause, Justice Gray wrote:
The fourteenth amendment of ^e constitution, in [the Citizenship Clause] con-
templates two sources of citizenship, and two only — birth and naturalization.
[CJitizenship by birth is established by the mere fact of birth under the cir-
cumstances defined in the constitution. Every person born in the United States,
and subject to the jurisdiction thereof, becomes at once a citizen of the United
States and needs no naturalization.
United States v. Wong Kim Ark '* The plain meaning of the 14th Amendment, as
well as the Supreme Court's interpretation, illustrates the dubious nature of current
proposals to limit birthright citizenship.
Legislative attempts to limit birthright citizenship are flawed
Clearly, birthright citizenship is not the sole manner of acquiring American citi-
zenship. In this respect. Congress does play an important role in citizenship law.
As the Court noted, naturalization is an equally important method of welcoming
newcomers into the American polity. In addition, a person bom abroad to U.S. citi-
zen parents may qualify for American citizenship.^ Finally, certain historical cir-
> The Birthright Citizenship Amendment: A Threat to Equality, Harvard L. Rev., p. 1027, 1994.
2 Joseph H. Carens, Who Belongs? Theoretical and Legal Questions about Birthright Citizen-
ship in the United States, University of Toronto Law Journal, vol. xxxvii, no. 4, fall, 1987.
3 U.S. Const, amend. XIV §1. Importantly, this clause abolished the Supreme Court's differen-
tial treatment of U.S. -born children of parents who were slaves of African descent. Scott v.
Sandford, 60 U.S. (19 Howard) 393 (1857) (the "Dred Scott" case).
nee U.S. 649(1898).
5INA §301 (c) and (g); 8 U.S.C. § 1401 (c) and (g). Thus, notions of jus sanguinis (descent from
citizen parent) expand citizenship to include those born outside of the United States borders.
(144)
145
ciunstances, such as the acquisition of territories, necessitated special citizenship
regulations found in the Immigration and Nationality Act.®
However, proposals to limit birthright citizenship are constitutionally unsound.
H.R. 1363, the Citizenship Reform Act of 1995, attempts to eviscerate the 14th
Amendment by creating an artificial meaning of "jurisdiction." H.R. 1363 does so in
a circular way by redefining INA § 101, which restates the 14th Amendment's Citi-
zenship Clause.'' H.R. 1363 adds a subsection to INA § 101 which limits "jurisdic-
tion" to include only tiiose bom to a citizen or legal permanent resident parent. Ad-
ditionally, the bill requires a finding that the parent maintains their residence in
the United States. This approach is mndamentally flawed.
The Supreme Court has stated time and again that the 14th Amendment is be-
yond legislative tinkering. This principle has been broadly declared by the Court:
[t]he Fourteenth Amendment, while it leaves the power, where it was before,
in Congress, to regulate naturalization, has conferred no authority upon Con-
gress to restrict the effect of birth, declared by the Constitution to constitute
a sufficient and complete right to citizenship.
Wong Kim Ark.^ It was restated more recently in equally compelling terms:
[the Citizenship Clause] provides its own constitutional rule in language cal-
culated completely to control the status of citizenship: "All persons bom or nat-
uralized in the United States * * * are citizens of the United States, * * *"
There is no indication in these words of a fleeting citizenship * * * subject to
destruction by the Government at any time * * * this Fourteenth Amendment
citizenship was not to be shifted, canceled, or diluted at the will of the Federal
government, the states or any other government unit.
Afroyim v. Rusk.^ The Court recognized that this concept was originally intended
to secure the citizenship of newly fi"eed blacks. However, the Court held that this
was a broad concept and that citizenship could not be affected by Congress even
under "an implied general power to regulate foreign affairs or some other power
generally granted." i° Therefore, attempts to legislatively change birthright citizen-
ship must fail.
Assuming arguendo that the Fourteenth Amendment could be stripped by merely
redefining a section in the Immigration and Nationality Act,^^ H.R. 1363 is still con-
stitutionally infirm. The meaning of the word "jurisdiction" is not so manupulable
that it can exclude persons not contemplated by its original terms. Rather, Wong
Kim Ark provides the relevant explanation of "jurisdiction":
[t]he real object of the Fourteenth Amendment of the Constitution in qualifying
the words, "[a]U persons bom in United States" by the addition "and subject to
the jurisdiction thereof," would appear to have been to exclude, by the fewest
and fittest words * * * the two classes of cases — children bom of alien enemies
in hostile occupation, and children of diplomatic representatives of a foreign
State. 12
The Court, after a lengthy discussion of Anglo-American caselaw, determined that
these exceptions were entirely consistent witn traditional concepts of American and
English citizenship. 13 Further, the Court determined that the framers of the Four-
teenth Amendment did not intend to impose any new restrictions upon citizenship
or exclude any children bom in this country from the citizenship that was their
birthright.!'* "Subject to its jurisdiction" was determined to be coextensive and syn-
onymous with "within the jurisdiction" of any State in the Union. ^^ Thus, jurisdic-
tion is an expansive concept which cannot be limited artificially by a seemingly sim-
ple legislative change.
More recently, redefining "jurisdiction" to preclude conferral of rights has not sur-
vived Constitutional scrutiny Plyler v. Doe. In Plyler, appellants argued that a state
affords protection only to persons within its jurisdiction. They argued that persons
who have entered the United States illegally are not "within its jurisdiction," even
6INA§301, 8U.S.C. §1401.
■' INA § 301 (a); 8 U.S.C. § 1401.
8 169 U.S. 649, 703.
9 387 U.S. 253,262(1967).
10 W. at 263.
11 The Court in Wong Kim stated that the Citizenship Clause is "declaratory in form, and ena-
bling and extending in effect." 169 U.S. 649, 676. Thus, it is hard to imagine that the INA was
needed to effectuate this Constitutional mandate.
12 169 U.S. 649, 682. Note also that one practice manual states that U.S. bom children of for-
eign diplomats are considered to have become permaneht residents at birth. Immigration Prac-
tice %12-3{a), Michie Publishing Co. (1994).
13 W. at 682.
14 W. at 688.
16 W. at 687.
146
if that person is within a state's boundaries and subject to its laws. The Court de-
clared ttiat "neither our cases nor the logic of the Fourteenth Amendment supports
that constricting construction of the phrase "within its jurisdiction.' " ^^ Rather, the
Court restated that jurisdiction, as commonly understood, applies to all those within
the boundaries of a State. Therefore, H.R. 1363 is legally unsound.
PROPOSALS TO DENY CITIZENSHIP VIOLATES EQUAL PROTECTION PRINCIPLES
In conferring citizenship to the children of freed slaves and reaffirming it for all
those bom in the U.S., the Fourteenth Amendment in its Equal Protection Clause
further mandates that all persons similarly situated be treated alike. The Supreme
Court reinforced this notion when it held that the Fourteenth Amendment extends
beyond the protection of citizens. Yick Wo v. Hopkins ^"^ H.R. 1363 and H.R. 705 vio-
late equal protection principles by treating similarly situated children differently in
attaining citizenship.
The notion that a parent's immigration status limits the universal application of
the Citizenship Clause was soundly rejected in United States v. Wong Kim Ark. ^®
In this case, the Court held that a child bom in San Francisco to Chinese non-citi-
zen parents was an American citizen by virtue of the 14th Amendment's Citizenship
Clause. This was despite the fact that the Chinese and other Asians had been ex-
cluded by Congress from eligibility for naturaUzation. While Congress was within
its powers to bar the child's parents from naturalization, the Court stated that the
14th Amendment placed the citizenship of native-bom children beyond the powers
of Congress. ^^
H.J. Res. 64 and the companion legislation H.R. 705, deny citizenship based on
the mother's status. Like the Asian parent precluded from conferring citizenship to
their child, a mother who is not a citizen or legal permanent resident cannot confer
citizenship to their child. Basing citizenship on the parent's status is a clear viola-
tion of the Supreme Court holding in Woog Kim Ark and raises troubling equal pro-
tection concerns.
Discrimination against a discrete class
Discrimination against certain children based on parents' conduct violates equal
protection principles. Weber v. Aetna Casualty. "^^ In that case, Louisiana's work-
men's compensation law afforded illegitimate children recovery only if surviving de-
pendents did not exhaust the maximum benefits. The Court decided that the State
may not invidiously discriminate against this discrete class, illegitimate children, by
denying them substantial benefits accorded children generally. Furthermore, the
Court refused to allow the state to discriminate against certain children, even when
they could be used as vehicles by which to deter or influence the behavior of other
persons, such as parents.^i
Disparate treatment of illegitimate children, not responsible for their birth, vio-
lates the general principle that legal burdens should bear some relationship to indi-
vidual responsibility or wrongdoing and violates the principle of equality. Discrimi-
nation against undocumented children, Uke discrimination against illegitimate chil-
dren, violates equal protection.22 In Plyler v. Doe,^^ the Supreme Court based its
decision in part that undocumented children, like illegitimate children, have no con-
trol over who they are and should not be discriminated against on this basis. In up-
holding these children's right to equal access to elementary and secondary edu-
cation, the Court found that undocumented aliens cannot be excluded from public
schools because this discriminated against certaiin children based on a legal char-
acteristic over which the children have no control. In this regard the Court stated
that "[IJegislation directing the onus of a parent's misconduct against his children
does not comport with fundamental conceptions of justice." ^'^ The children of un-
documented entrants can affect neither their parents' conduct nor their own status.
16 457 U.S. 202, 212.
»' 118 U.S. 356.
18 169 U.S. 649 (1898).
i^/d. at 694, 701. Legally foreclosing naturalization to certain people based on national origin
is not a policy that our country would likely resurrect, nor would it survive constitutional scru-
tiny.
20 406 U.S. 164.
21 See also Wallach v. Van Riswick, 92 U.S. 202, 210 (1876) (Decision sought to protect chil-
dren of persons convicted of treason from loss of inheritance because of their parents' conduct).
22 YicA Wo V. Hopkins, 118 U.S. 356 (1886). The Fourteenth Amendment applies to any person
within the jurisdiction of the U.S. without regard to nationality.
23457 U.S. 202 (1982).
2'»/d. at 220.
147
Therefore, H.R. 1363, H.J. Res. 64 and H.R. 705 unconstitutionally violate equal
protection principles.
DENIGRATION OF AMERICA'S EGALITARIAN TRADITION
Principles of ascription in which inclusion in a policy is the result of objective
characteristics have largely governed and must continue to govern United States
naturalization law. Ascription is consistent with other American principles of equal-
ity in that it treats all people similarly rather than making citizenship a subjective
determination of a society influenced by political trends and current events.
Philosophically, basing citizenship on ethnicity or bloodline alone devastates the
message of the Constitution. A Constitutional amendment that contradicts the fun-
damental principle of equality denigrates this value. It also weakens the moral per-
suasiveness of the Constitution's message of equality.^s Yet, the equality principle
is of paramount importance in our society. Equal opportunity and dismantling artifi-
cial barriers to success are core American values. An amendment to limit citizenship
erodes the equality principle and mandates a hierarchy of citizenship. The philo-
sophical cost is unacceptable. Legislation proposing a Constitutional amendment,
such as H.J. Res. 64 and H.R. 705, must be defeated to protect our core American
principles.
Proposals based solely on a theory of mutual consent, are not supported in the
totality of American values and principles. Theories of mutual consent which sug-
gests that consent to membership in the United States is by the individual and the
existing members of this society are flawed in several respects.^^ Even the authors
of this theory recognize the limitations of mutual consent by according birthright
citizenship to chil<^en of all new and existing members regardless of whether the
commxinity has assented. Schuck and Smith justify this exception because no one
would join a community if their children could not. This assimies, despite historical
and invidious discrimination against certain groups, that the larger whole of the
American policy would mutually consent to include their children. This also pre-
supposes that people joining the community are in a position to refuse citizenship
if their children would not be accepted. This ignores the economic situation that
many immigrants may face which might force them to accept membership into a
community although that community would not accept their children. Conversely,
this ignores the historical reality that faced many Aisians who were not accepted
into the American community, and in fact were barred from naturalizing to become
fiill citizens but hoped for a better life for their children.^'
The American political community encompasses other, more inclusive principles
than that of mutual consent. The absence of a hierarchy of citizenship, or differing
terms of citizenship based on heritage, and the ultimate inclusion of blacks and oth-
ers behe this notion of mutual consent as the basis of American citizenship. If other
values were not considered, the tension between majoritarianism and minority
rights woxild consistently result in the success of the majority and the exclusion of
minority groups. Indeed, if the citizenship clause of the Constituent were based on
this theory of mutual consent, it would logically have the left the issue open to ordi-
nary political processes so that citizens could decide whether or not to consent to
new membership. 28 Citizenship must not become an ephemeral concept, determined
by the popularitv of one group versus another. Arbitrary distinctions which form the
basis or these bills must be rejected.
Principles of ascription through the Citizenship Clause of the 14th Amendment,
enabled the expansion of the community as it has ocoirred in American political his-
tory. It is critical to note that the Wong Kim Ark decision29 is not an example of
society mutually consenting to permit persons of Chinese descent into this country.
Rather, it is an example of an unpopular ^oup laying claim to a universal and uni-
fying concept of citizenship. By basing citizenship of the objective circumstance of
birth in the U.S., the 14th Amendment clearly embodies and must continue to give
meaning to principles of equality.
Under such proposals, ethnicity will be legislated as a proxy for outsider status.
Disparate treatment based on national origin exacerbates social inequities and
threatens the social fabric of the nation. Invariably, Latinos will be considered less
^The Birthright Citizenship Amendment: A Threat to Equality, Harvard L. Rev., p. 1027,
1994.
2« Peter H. Schuck and Rogers M. Smith, Citizenship Without Consent. Illegal Miens in the
American Policy, New Haven: Yale Univ. Press (1985).
2"' See Oyama v. California, 332 U.S. 633 (1948).
^Gerald L. Neuman, Back to Dred Scott?, San Diego L. Rev., vol. 24, no. 2, 1987.
» 169 U.S. 649.
148
than full Americans given the misperceptions that surround immigration.^** Latino
children will be ostracized and subject to citizenship checks more frequently than
other Americans solely because of their heritage.^i Such odious and unintended con-
sequences will surely flow from enactment of mis legislation.
In determining inclusion in American society and the symbolism of citizenship,
one author has noted the pervasive character of'^the law.
Great legal cases have a cviltural meaning that goes beyond their particular
findings and their precedential power. * * * Both [Dred Scott and Elk^^] are
compelling reminders of the dark side of American society. * * * By contrast,
Wong Kim Ark provides one of the few bright spots in American legal history.
* * * The case was decided in 1898 at the height of the "Yellow Peril" scare.
As the minority opinion shows, there were ways to justify the exclusionary posi-
tion in legal terms. So the decision in Wong Kim Ark stands for the affirmation
of the legal rights of an unpopular racial minority in the face of powerful oppo-
sition and hostility.^
This powerful legacy of our Constitutional jurisprudence and our ideals of citizen-
ship should not be tained by overriding concerns of immigration enforcement.
DENYING BIRTHRIGHT CITIZENSHIP IS AN IRRESPONSIBLE MEANS OF ENFORCING
IMMIGRATION POLICY
No evidence supports the view that the amendment would meet its implied goals
of reducing undocumented migration. Rather, these proposals manipulate concerns
brought to the fore by attempts to reform our nation's immigration system. Credible
studies state that the dominant causes of undociunented migration are the hope of
obtaining employment or reunifying with family members. To change long-standing
notions of citizenship as a means of enforcing immigration law is irresponsible at
best and a bizarre attempt to manipulate pubhc sentiment at worst.
Denial of citizenship will create a stateless underclass
The fundamental rights that flow from citizenship have been recognized in our ju-
risprudence as well as by international scholars. At essence, citizenship confers the
right to have rights.** In Dred Scott, access to the judicial system hinged on citizen-
ship status.35 In this respect, the Covut noted in Plyler^ that the undocumented
have been encouraged by some to stay in the US as a source of cheap labor yet de-
nied rights and benefits that society makes available to its citizens and lawful resi-
dents.
The confluence of government policies has resulted in the existence of a large
number of employed illegal aliens whose presence is tolerated, whose employ-
ment is welcomed, but who are virtually defenseless against any abuse, exploi-
tation, or callous neglect to which the state or the state's natural citizens and
business organizations may wish to subject them.^'
It is not merely the loss of rights that is at stake but the very humanity of the per-
son who is denied a role in the community. Denying citizenship will render power-
less an already disenfranchised group of persons. Under these proposals, genera-
tions of people will be precluded from joining our conmiunity.
For aU of these reasons, MALDEF urges Congress to oppose efforts to limit or
eliminate birthright citizenship.
^ Concerns about the alleged lack of assimilation and allegiance of Asian groups, echoed in
today's public debate on immigration, have led to enactment of discriminatory policy. See
Korematsu v. U.S., 323 U.S. 214, 237 (dissent of Justice Murphy) (discriminatory views giving
credence to internment without a bona fide military necessity).
^^For an elaboration of the social impact of such a proposal, See John W. Guendelsberger,
Access to Citizenship for Children Bom Within the State to Foreign parents, Am. J. Comp. L.
Vol. XL (1992).
^^Elk V. Wilkins, 112 U.S. 94 (1884). In Elk, a Native American was denied the right to vote
because the Court found that he had failed to naturalize. Finding that indigenous Americans
owed allegiance to their tribes, the Court held that birthright citizenship was unavailable to Na-
tive Americans. Later statutes rectified this situation and Native Americans are now afforded
birthright citizenship.
^ Carens, supra, note 2 at 436.
^ Something much more fundamental than freedom and justice * * * is at stake when be-
longing to the community into which one is bom is no longer a matter of course * * * [and]
his treatment by other does not depend on what he does or does not do * * *" Hannah Arendt,
The Origins of Totalitarianism, 293-302 (1951).
^^Temngly, the question that the court decided on was whether a person, bom to slave par-
ents, could become part of the political community and enjoy access to commensurate rights.
Scott, 60 U.S. (19 Howard) 393, 408.
3«457 U.S. at 219.
Appendix 4 — Statement of Raul Yzaguirre, President,
National Council of La Raza
I. INTRODUCTION
Mr. Chairman and members of the Subcommittees, on behalf of the National
Council of La Raza (NCLR), the nation's largest constituency-based Hispanic organi-
zation, I would like to express our strongest possible opposition to proposals to mod-
ify the so-called "birthright citizenship" clause of the Constitution of the United
States.
NCLR is an umbrella organization with more than 200 affiliates — community-
based organizations throughout the United States who provide services to more
than 2.5 million Latinos every year. NCLR has appeared before this committee
many times to share our views on immigration-related legislation. We have always
been wiUing to put forward and consider reasonable approaches to immigration con-
trol, and have consistently opposed proposals which we believe would be ineffective
or harmful to the United States or the values on which it was founded. The question
of ending the principle of birthright citizenship in the U.S. fits into both of these
categories so strongly as to almost defy explanation.
There are two £stinct types of proposals which have been offered on the birth- '
right citizenship question. One type of proposal, sponsored by Rep. Elton Gallegly
and others, would amend the Constitution to deny citizenship to U.S.-bom children
of undocumented mothers. Others, including California Governor Pete Wilson, have
called for adoption of similar Constitutional amendments.
A second, statutory form of this proposal has been advanced by Rep. Brian
Bilbray. His proposal would funend Section 101 of the Immigration and Nationality
Act to deny citizenship to U.S.-bom children to: (1) parents who are married and
neither of whom are U.S. citizens or lawful permanent residents of the U.S.; or (2)
an unmarried mother who is not a citizen or lawful permanent resident or the U.S.
In short, NCLR believes that such proposals are blatantly unconstitutional, ill-
conceived, and inconsistent with the nation's values and policy interests— or, in the
case of proposed Constitutional amendments, wholly inconsistent with the spirit of
the Constitution — for the reasons explained below. ^
II. PROPOSALS TO MODIFY BIRTHRIGHT CITIZENSHIP ARE INCONSISTENT WITH THE
CONSTITUTION
A Background
Few issues of law are more clearly settled than the simple rule that all persons
bom in this country are considered citizens of the United States. The Citizenship
Clause of the Fourteenth Amendment provides that:
All persons bom in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the States wherein they reside (empha-
sis added).
Except for children of diplomats, invading armies, or, for only a brief period of
time. Native Americans — i.e, those considered not subject to the jurisdiction of the
U.S. — ^the clause contains no other Umitations or equivocations.
In 1898, the meaning of the Citizenship Clause of the Constitution was conclu-
sively determined in Wong Kim Ark, when the U.S. Supreme Court rejected argu-
ments that the son of Chinese immigrants — ^who were then barred by statute from
ever becoming U.S. citizens — should be deprived of citizenship due to the status of
his parents. Since that time, no court has even questioned, much less denied, citi-
zenship status to any U.S.-bom children, regardless of their parents' immigration
status.
*See attached memorandum on Representative Brian Bilbray's Proposal to Deny Birthright
Citizenship Status to Children of Undocumented Persons prepared for NCLR by the Washing-
ton, D.C.-based law firm of Wilmer, Cutler & Pickering.
(149) V
150
Both the statutory and Constitutional amendment approaches to modifjdng the
Citizenship Clause are fundamentally flawed and inherently dangerous to our na-
tion's most sacred values, for a wide variety of reasons, as suggested below.
B. Statutory approaches
Rep. Bilbrays proposal attempts to redefine the terms "subject to the jurisdiction
[of the United States]" to exclude persons other than citizens of lawfiil permanent
residents. In light of the history of the Citizenship Clause, this approach is legally
erroneous and clearly unconstitutional.
First, this attempt to reinterpret and circumvent the plain language and legisla-
tive history of the Fourteenth Amendment contravenes every credible interpretation
of the Citizenship Clause. Contrary to Rep. Bilbray's assertion that the Fourteenth
Amendment applied exclusively to newly-freed slaves, the legislative history rein-
forces the intent of the Clause's reference to all persons, including the intent to ex-
tend citizenship rights more broadly to "the alien and the stranger."
Second, the statutory approach contravenes the Fourteenth .Ajnendment's clear in-
tent to promote the equal protection of the law. This is true on a whole range of
levels, as demonstrated below, but perhaps most clearly demonstrated in the follow-
ing way. Were this Congress to enact, and were the courts to uphold, H.R. 1363,
we would be stating in effect that the legislature could, by statute, define human
beings who are physically present in the United States as non-persons — entitles who
fall outside the scope and protection of the U.S. Constitution.
Third, by explicitly defining everyone in the country who is not a citizen or lawful
permanent resident as being outside "the jurisdiction of the United States," H.R.
1363 could create a number of perverse and untenable situations. We are all aware
of the occasional tensions that arise when, for example, foreign diplomats do not
abide by our laws and are held by the courts to be immune from prosecution. Rep.
Bilbray's proposal would place all of those U.S. residents who are neither citizens
nor lawful permanent residents in this same category. Does he intend that such per-
sons be considered exempt from paying taxes, registering with the Selective Service
and serving in the armed forces during wartime, or even paying parking tickets?
Fourth, H.R. 1363 is so narrowly written that the children of many persons who
are lawfiiUy present in the United States would be denied citizenship. There are
hundreds of thousands of persons legally here, including refugees and asylees, those
in temporary protected status, temporary workers, and parolees who are not now
permanent residents. H.R. 11363's restrictive language is thus flawed on two levels.
On one level, it would deny citizenship to the children of many who are lawfully
present in tWs country; this seems to be in direct contradiction to the legislation's
stated purpose. Just as importantly, it fails to recognize the fact that many, and
perhaps most, of these people will eventually obtain permanent resident, and even
citizenship, status. Thus, on another level, H.R. 1363 could, even within the same
family, create two different classes of citizenship for U.S.-bom children. Consider
the following example if H.R. 1363 were enacted:
John, a lawful permanent resident from Ireland, falls in love with and marries
Zoon, a recently-arrived refugee from Southeast Asia. Their first child, John Jr.,
is bom 11 months after Zoon's arrival and 10 months after their marriage. Be-
cause Zoon will not yet have been permitted under our laws to adjust to perma-
nent resident status, John Jr. is not considered a U.S. citizen. A year later,
their second child, Kim, is bom. By that time, Zoon has obtained permanent
resident status, so Kim is a U.S. citizen. The effect on these two siblings, bom
just one year apart: same parents, same family, same place of birth — ^but dif-
ferent citizenship.
Mr. Chairman, I cannot imagine a less desirable and more perverse result than
that described above, but if H.R. 1353 were enacted, it would not only be possible,
it would be inevitable — unless, of course, we also outlaw sex or marriage between
citizens or permanent residents and anyone who is not a citizen or permanent resi-
dent.
C. Constitutional approaches
Unlike the statutory approach, those who advocate a Constitutional amendment,
like that proposed by Rep. Gallegly, at least do not attempt to circumvent the Con-
stitution. Like the statutory approach, however, proposed Constitutional amend-
ments are inconsistent with the fundamental values espoused by our Constitution,
our nation, and, indeed, our civilization.
Modifications of the concept of birthright citizenship undermine the principle of
equaUty before the law by overtvuning the centuries-old doctrine that children are
not responsible for their parents' actions. One need look no further than the Bible,
which in Ezekiel 18:20 states that "the son shall not bear the iniquity of the father,"
151
for affirmation of the principle that innocent children should not be punished for
the sins of their parents. Article III of the Constitution itself established the prin-
ciple that similarly situated children — even those children whose parents had been
convicted of treason — should be entitled to their inheritance.
Since then, an unbroken series of Supreme Court cases has found, for example,
that legal distinctions based on immutable characteristics such as race, gender, Ule-
gitimacy, or immigration status are subject to heightened scrutiny, and are gen-
erally impenjiissible. The Court found that all illegitimate children, for example,
were entitled to equal protection in Levy v. Louisiana. In Trimble v. Gordon, the
Coxxrt struck down a law that denied illegitimate children their inheritance. In St.
Ann V. Palisi, the Court held that children could not be suspended from school be-
cause of the inappropriate conduct of their parents. In Weber v. Aetna Casualty and
Surety Co., the Court found that "no child is responsible for his birth."
This principle has been applied expUcitly in the immigration context as well. In
Oyama v. California, the Court overtiimed a law that placed barriers to land owner-
ship by minors whose parents were ineligible for citizenship. In this case, the Court
held that the law was unconstitioanl because it "points in one direction for minor
citizens * * * whose parents cannot be naturalized, and in another for all other
children." Finally, in the case of Plyler v. Doe, the Court found that although certain
benefits could be denied to undocumented aliens, the notion that unlawful status
could justify unequal treatment could not be applied to their innocent children.
And it is not just the "innocent children" doctrine which these amendments would
undermine. Mr. Chairman, the entire concept of equality before the law would be
invariably and perhaps irretrievably compromised. In discussing proposals to amend
the birthright citizenship clause, the Harvard Law Review commented that:
No amendment to the Constitution has ever aboraged existing rights arising
from the equality principle; to adopt one that does offend equality would sully
the document, and would cast doubt upon the resolve of the polity to safeguard
this value * * * How can society tell its immigrants, its minorities, and dis-
advantaged that, regardless of one's origins, everyone has a fair chance at suc-
cess and social acceptance, when through the Constitution, it erects barriers
against a class of innocent children (emphasis in the original).
These proposals undermine other important principles as well. For example, by
limiting citizenship only to those children with citizen or lawful permanent resident
mothers, these proposals blatantly violate the rights of the father. Under the propos-
als, even a child of a U.S. citizen father who could indisputably demonstrate pater-
nity— indeed, even a child of a citizen father who assumed all parental obligations
and responsibilities — wovild not be considered a citizen if the mother was not a citi-
zen or permanent resident at the time of birth.
Furthermore, the proposals before us would have the Constitution revert back to
the days of the infamous Dred Scott decision, when the law of the land sanctioned
the exclusion of particular groups, in this case native-bom African Americans, from
full participation in the society and the full protection of the law. By injecting con-
cepts of lineage and ancestry into the Constitution, we wovild undermine that docu-
ment's century-old commitment to the principle of equality before the law.
And once we abandon this cherished principle of equality in our Constitution,
what's next? Will we eliminate the citizenship status of certain religious groups, as
was done in Nazi Germany? Will we deny citizenship to the children of teenage
mothers on welfare, or those of unpopular ethnic groups, or those of persons with
AIDS, or those of convicted criminals?
Even worse, would we then be positioned to deny the protections of the U.S. Con-
stitution to such unpopular groups, as the Coxut did in Dred Scott, by declaring that
members of such groups are not persons" under the law?
Let me be clear on tiiis point. I do not argue that the current-day proponents wish
these resvdts. I do argue that, by explicitly overturning the Fourteenth Amend-
ment's legal and moral commitment to the principle of equality before the law, these
proposals open the door to all sorts of mischief, unintended consequences, and unac-
ceptable outcomes.
III. PROPOSALS TO MODIFY THE BIRTHRIGHT CITIZENSHIP CLAUSE ARE UNACCEPTABLE
ON POUCY GROUNDS
A Overview
Proponents of these proposals argue that they would merely bring U.S. law into
line with that of other countries. They further argue that they will reduce illegal
immigration. Finally, they suggest that adoption of these proposals will somehow
promote greater unity in the United States.
152
None of these assertions is true. Moreover, these proposals wovild lead to a series
of unacceptable and undesirable — if perhaps unintended — policy outcomes as well.
B. Policy effects
The assertion that U.S. law on birthright citizenship is sonfiehow out of line with
prevailing practices elsewhere in the world is simply untrue. A recent survey of the
citizenship laws of 33 other countries found that only eight restrict application of
birthright citizenship based on immigration status of the parents, and none based
such restrictions solely on the immigration status of the child's mother.
With respect to the proposals' alleged effects on illegal immigration, I note three
issues. First, none of the proponents cite a single empirical study demonstrating any
significant effect of their proposals on illegal migration. Indeed, these same pro-
ponents are fond of arguing that jobs, or welfare, or some other condition serves as
a "magnet" for illegal immigrants. They should make up their minds which, if any,
of these constitute real "pull" factors encouraging migration into the United States.
Second, proponents are fond of citing "studies ' which allegedly demonstrate sig-
nificant numbers of U.S.-bom children of illegal immigrants. When social scientists
have reviewed these "studies," they have found that they have "absolutely no foun-
dation." A recent General Accounting Office (GAO) report confirmed that hospitals
reporting these statistics were relying on flawed methodologies.
Third, the one indisputable effect of these proposals would be to increase the size
of the undocumented population in the U.S. Since children born to non-U. S. citizen,
non-permanent resident mothers would presumably be undocumented, the size of
this population would grow in direct proportion to the significance of the alleged
problem.
As for the assertion that somehow these proposals would promote unity and re-
duce social costs associated with undocumented immigration in the U.S., I can only
comment that nothing could be more false. A whole series of commentators have,
indeed, found the opposite; as the Harvard Law Review notes, "the amendment
would cause the negative social effiects of such a permanent underclass of residents
to proliferate, rather than dissipate."
Fvu-thermore, I would note that, those few countries which do restrict citizenship
based on immigration status — like France and Germany — have experienced race
riots and social unrest on a massive scale. In fact, in an attempt to dispel the com-
monly-held popular notion that all ethnic minorities are "foreigners," Germany's
Christian Democratic Party is promoting the greater provision of citizenship to non-
ethnic Germans.
Moreover, if anything would be more divisive and discriminatory than yet another
proposal to separate people based on their ancestry, I cannot conceive of it. Afl^er
the 1986 Immigration Reform and Control Act (IRCA) and employer sanctions, GAO
documented a "widespread pattern" of employment discrimination, because some
employers mistakenly thought all persons who looked or sounded "foreign" were un-
dociunented aliens. After Proposition 187, a fast food restaurant refused to sell U.S.
citizen teenagers a pizza because they were Latinas. If current welfare proposals are
adopted, children will have to form different lines in the school cafeteria, based on
their immigration status. I tremble at the thought of how some people are likely
to treat newborn babies if these proposals are adopted.
To those who might suggest that I exaggerate, let me recount a bit of history. In
the 1980s, Congress debated and passed IRCA designed to stop undocumented im-
migration. Some of us argued that eventually this legislation would have a "spill-
over" effect, and would end up targeting all of us — immigrant and citizen alike —
who look or sound "foreign." We argued that this legislation would lead to caUs for
even more repressive measures, like national identification systems.
Our opponents accused us of demagoguery and worse. In the wake of a series of
independent reports that confirm that many of us have experienced discrimination
as a result of IRCA, this very Congress will soon consider legislation and floor
amendments to estabUsh a "worker registrjr" and a national ID card.
During the debate on Proposition 187, many of us argued that it would eventually
harm all immigrants and those of us, including citizens, who had surnames, or
speech accents, or physical characteristics that some view as "foreign."
Proponents scoffed at this notion, and argued vociferously that they intended no
harm to legal immigrants or U.S. citizens. Now, this very Congress passed legisla-
tion denying benefits to legal immigrants and certain U.S. citizens.
I warn you today that these proposals will undermine our nation's commitment
to equality under the law. I warn you today that these proposals wiU lead us down
the proverbial slippery slope toward a nation whose laws permit distinctions based
on ancestry, on race, on ethnicity, on gender, and other immutable characteristics.
I warn you today that these proposals will not do anjrthing to reduce unauthorized
153
migration, but instead will increase the size of the undocumented population. Fi-
naUy, I warn you that these proposals will lead to enormous discrimination and so-
cial strife.
You may, if you wish, accuse me of demagoguery or worse. You may scoff at my
predictions. You may choose not to heed my warnings. Let me note in reply that,
as it pertains to these issues, we have been right, and oxir opponents have been
wrong.
IV. CONCLUSION
Mr. Chairman, in conclusion, permit me to raise two final issues. Even if the Sub-
committees were not persuaded by the fact that these proposals violate the Con-
stitution and would not achieve their intended policy consequences, I suggest they
should still be rejected.
One reason they should be rejected is that they are inconsistent with the values
which the majority of the Congress claims to uphold. At a time when the leadership
of the Congress is arguing that government has grown too large, too unwieldy, and
too intrusive, I am shocked that these proposals would be seriously considered.
What could possibly be more intrusive than to inject the hand of the government
into the most sacred of human situations — the birtii of a child? What could possibly
be more intrusive than injecting the government into the bedroom, and to decide
that the rights of a child's father are irrelevant? We may be getting the government
off our backs, but these proposals would put the government into our delivery rooms
and even our bedrooms.
And to those who hold the belief that Ufe begins at conception, how can you rec-
oncile that belief with the notion that only the status of the child's mother at the
time of birth matters? Under Governor Wilson's proposal to provide citizenship to
any child whose parents are "lawfully present" in the U.S., there will be many chil-
dren who are conceived while their parents are in lawful status — such as those in
temporary protected status, or those with temporary work permits, or asylum appli-
cants whose claims are later rejected — but whose parents may be in undocumented
status at ihe time of birth. Woiild those who hold the "pro-life" position have us be-
lieve that life begins at conception only if the parents are also in lawful status at
the time of birth? And if so, does that mean that abortions for those in the U.S.
illegally should be the only ones available under out laws? Surely not.
Finally, as those of us who opposed Proposition 187 argued — in retrospect cor-
rectly— ^these proposals, like that ill-conceived ballot proposition, will lead only to
greater public frustration and anger. Whatever one thinks about the intent of Prop.
187 — and 1 know reasonable people disagree — opponents made at least one argu-
ment which is undeniably true. We noted that elements of this proposition were of
dubious constitutionality, and wovdd inevitably be tied up in utigation for many
years. We argued that passage of Prop. 187 would therefore do nothing to address
the question of immigration control in the foreseeable fiiture. We argfued that the
pubUc would become more angry and frustrated when the inevitable — and success-
ful— court challenges prevented its implementation.
Mr. Chairman, I repeat those arguments today with respect to these proposals.
In the case of H.R. 1363, everyone in the room knows that it will inevitably be chal-
lenged and successfully enjoined in the courts for many, many years, at best, even
in the extremely unhkely event that it is eventually upheld.
In the case of the Constitutionsil amendments, everyone in the room knows that
Congressional action would be protracted and fractious, and the ratification process
equally if not more so. In any event, the process would take years.
In short, these proposals are a sham. Some Members will get some attention.
Some Members wiU go home and say they did something to be "tough" on immigra-
tion. In the meantime, Mr. Chairman, you would have passed another divisive pro-
posal that would have done nothing whatsoever to affect undocumented migration.
Let's have some truth in government here. I urge you in the strongest possible
terms to reject these proposals and move on to the real work of crafting real legisla-
tion that promises real solutions.
BOSTON PUBLIC LIBRARY
, lililiiilllil
3 9999 05984 013 0
Appendix 5.— Letter Dated February 12, 1996, From Prof.
Peter H. Schuck and Prof. Rogers M. Smith, Yale Law School
Yale Law School,
New Haven, CT, February 12, 1996.
Hon. Lamar S. Smith and Hon. Charles T. Canady,
Subcommittee on Immigration and Claims and Subcommittee on the Constitution;
Committee on the Judiciary, Rayburn House Office Building, U.S. House of Rep-
resentatives, Washington, DC.
Attn: George Fishman.
Dear Chairmen Smith and Canady: As discussed with your staff, we ask that
this letter be added to the published record of the hearing held on December 13,
1995 on the subject of birthright citizenship. The letter responds to Professor Gerald
Newman's criticisms of our book. Citizenship Without Consent, in his written state-
ment at the hearing. Our response is confined to the constitutional issue, which is
the only point — albeit an important one — on which we and Professor Neuman differ.
We shall be brief and touch on only those points that might not be obvious to a care-
ful reader of Professor Schuck's earUer testimony.
The crucial question that divides Professor Newman and us is this: what theory
of the meaning of the Citizenship Clause best explains how the Framers would have
\iewed its application to the native-bom children of illegal aliens? To be adequate,
such a theory must make sense of (1) the ambiguity of the Clause, particularly the
limiting phrase "subject to the jurisdiction thereof;" (2) the general principles of
membership and consent to which the Framers were committed; and (3) the fact
that although they never considered how those principles would apply to the then
non-existent category of illegal alien, they did make a specific decision to deny con-
stitutional birthright citizenship to American Indians, a group with a stronger claim
to it than illegal alien children have ever had. Our theory meets this challenge; Pro-
fessor Neuman's does not.
Scholars can reasonably diflFer in their interpretations of the Citizenship Clause
for two reasons. The first reason is that today we attempt to apply the Clause to
a group the fi-amers never considered: Children of persons present in the U.S. in
violation of federal law. The second reason is that the language of the clause was
ill-designed to accomplish the purposes that, all scholars agree, the Framers shared.
They wished to make the citizenship of American-bom blacks secure by
constitutionalizing the common law rule of jus soli, citizenship by place of birth.
They were prepared to accept that this rule made citizens even of people still ineli-
gible for naturalization, including persons of Chinese decent and Africans bom out-
side the United States. They emphatically did not wish to extend birthright citizen-
sh^ to persons born into the Indian tribes.
The language they chose to exclude Indians fi-om constitutional citizenship was
that it would not extend to persons who were not bom "subject to the jurisdiction"
of the United States. That phrase did not do the job well, however, because even
though the U.S. recognized the tribes as "dependent nations," it still claimed and
often exercised sovereignty over their lands and conduct. In this very crucial sense,
the Indians were "subject to the jurisdiction" of the U.S.
The Framers simply did not articulate a theory that explains how their words
would accomplish their goals in consistent fashion, much less one that explains how
they would have regarded the status of today's illegal aliens. It is thus not surpris-
ing that scholars differ on how to interpret the Clause and how to apply it in con-
temporary circumstances. We believe that our interpretation is the most coherent
response to these difficulties.
Neuman interprets the "subject to the jurisdiction" phrase as meaning "actual
subjection to the lawmaking power of the United States," and he thinks that this
standard accomplished the Framer's intent to exclude the native tribes. But in 1868
the U.S. had already repeatedly asserted and exercised its professed right to legis-
late over the tribes in many regards, especially their disposition of their lands. In
1871, a Congress that contained many Framers of the 14th Amendment adopted the
policy of always legislating over the tribes directly rather than ever dealing with
(154)
155
them by treaty (16 Stat. 544 (1871)). But Congress took this step as a matter of
new policy, not new power. It never doubted their authority to legislate over the
tribes. Neuman's reading does not explain, then, how the "subject to the jurisdic-
tion" limitation excluded the tribes from birtiuight citizenship.
The Framers did provide an imperfect bvit suggestive answer. They defined the
status of the tribes as "dependent nations," a category that they drew from the
international law writer Emmerich de Vattal, whose ideas (so the Supreme Court
later noted in Wong Kim Ark, 169 U.S. 649 (1898)) had influenced the Framers. It
was also a category that Chief Justice John Marshall had used to characterize the
tribes. Cherokee Nation v. Georgia, 5 Peters 1, 16-17, 20 (1831). Vattel said that
such "dependent nations" had consented to give up a portion of their sovereignty
in return for protection from a greater power, which thus exercised a measure of
sovereignty over them. By exercising that sovereignty, however, the more powerful
nation had not consented to make them full members of its own political society.
Although this understanding of political membership as resting on consent was con-
sistent with influential understandings in American legal and political discourse
tracing back to the Declaration of Independence's contention that just governments
derive their authority from the "consent of the governed." The Framers used the
"subject to the jurisdiction theory" phrase to limit the effect of the jus soli conmion
law rule that they otherwise evaded.
Professor Neuman emphasizes a passage from the Wong Kim Ark decision in
which the Supreme Court noted that the Indian tribes stood "in a peculiar relation
to the National Government, unknown to the common law. ..." But if the tribes
were "unknown to the common law" and were thus excluded from constitutional citi-
zenship, illegal aliens were even more so, as the common law, which did not impose
inunigration restrictions, did not even recognize such a category.
Professor Neuman argues that our position is circular because it requires that the
U.S. consent to an individual's status "as a citizen." If that were our position, it
would indeed be circular, but that is not our position; we say only that the U.S.
must consent to the individual's permanent legal presence in the U.S. in order to
make that person "subject to the jurisdiction thereof" Professor Neuman also ac-
cuses our theory of circularity becavise (he says) it relies on the same evidence to
bestow constitutional citizenship on the native bom-children of legal permanent
residents as it does to deny that status to temporary visitors' and illegal aliens' chil-
dren. But ovu" evidence on the status of the children of legal permanent residents
could not be clearer; the Framers specifically discussed the children of Chinese and
other permanent residents and clearly indicated that the Clause would render them
birthright citizens.
Finally, Professor Neuman says, incorrectly, that ovu- position is that the "subject
to the jurisdiction thereof clause covered only those aliens who owed "no allegiance"
to any other sovereign. In fact, the Framers distinguished (in the passages that we
cite in our book, to which Professor Neuman's testimony refers) between aliens who
retained their original allegiance but subordinated it in order to live more or less
permanently in an American community that had accepted them into it, and those
who had not subordinated their original allegiance but were nonetheless subject to
U.S. jurisdiction in decisive respects. The latter group, which included Indians bom
in the tribe (but not those bom "in white society," a distinction later drawn by the
Supreme Court in Elk v. Wilkins, 112 U.S. 94 (1884), were not "subject to the juris-
diction" of the U.S. within the meaning of the Clause. We continue to think that
the absence of mutual consent to their presence and status makes illegal aliens
more similar to tribal Indians than to Chinese legal resident aUens with respect to
the applicability of the "subject to the jurisdiction thereoP limitation on birthright
citizenship.
We thank you for this opportunity to set the record straight.
Sincerely
Peter H. Schuck.
Rogers M. Smith.
O
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